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Abstract

In Germany, higher education depends on the Länder themselves. Each Land decided herself, what language requirements she demands from students before taking up their studies at university if they do not hold German nationality. Usually in the provincial laws an adequate knowledge is described as a requirement and it is left to universities to decide for which degree they require which specific level of German. Usually universities require levels ranging from B2-C2 under the Common European Framework of Reference for Languages This causes the following curiosities: ◾for different degrees, different levels of German are required ◾for the same degrees at different universities, different levels of German are required ◾from students holding German nationality but not speaking German (e.g. nationality received from parents but born and living in Latin America), no language certificate is required ◾from students having obtained the German nationality via naturalization, no language certificate is required although for naturalization in Germany only a B1 is needed In the case 7 CE 13.2222 the Bayerischer Verwaltungsgerichtshof (highest administrative court of Bavaria) confirmed that such an approach can constitute an infringement of European Law and asked the Verwaltungsgericht Ansbach (administrative court of Bavaria) to refer the case to the European Court of Justice for clarification. The student in question was given the right to access university meanwhile. The court wants to have clarified if levels demanded above B1 (prerequisite for naturalization) are then considered as discrimination.
Dr. Walter Demmelhuber
Reader
walter.demmelhuber@fau.de
Further information available at: www.discrimination.guru
Version: for publication
The authors of the individual articles are responsible for their contents. The contents of the
articles do not necessarily reflect the opinion of the university.
Language discrimination against EU students at German
universities
With reference to
Bayerischer Verwaltungsgerichtshof (Bavarian Higher Administrative Court) Reference
7 CE 13.2222 - 06.02.2014
Dr. Walter Demmelhuber*
2
Copyright 2014 Walter Demmelhuber
Language discrimination against EU students at German universities
When German universities insist on knowledge of the German language at levels they
themselves have set as a compulsory requirement for enrollment at university, this can
be regarded under European law as discrimination against foreign EU citizens in
relation to German citizens, who normally have German as a mother tongue, and as an
infringement of the rules concerning free movement in the EU. Universities are not free
to set their own requirements, but must comply with European and national legislation,
laws and directives, for example concerning naturalisation or freedom to pursue a trade
or profession of EU citizens. Different requirements concerning the level of language
proficiency should not be used as a political instrument by universities to control relative
numbers of foreign students or for general quality management purposes. A
disproportionate requirement could therefore constitute an infringement of Article 18
TFEU
1
or the FreizügG/EU [Free Movement Act]
2
.
According to the recently published OECD education report Education at a Glance 2013:
OECD Indicators, Germany occupied third place in terms of the number of foreign students in
relation to national students. After the USA (16.5%) and the United Kingdom (13.0%), 6.3%
3
of all students enrolled at German universities came from other countries. Furthermore,
universities of music had a proportion of foreign students that was 2.5 times higher than the
average for all German universities according to the German Music Council
4
, owing to the
large number of applications from non-EU (typically Asian) countries.
In relative terms therefore, Germany is the most popular non-English-speaking country
worldwide with 272 696 foreign students registered at German universities in 2013
5
. The
attractiveness of studying in German as opposed to other countries is mainly due to the
absence of tuition fees for all foreign students, except in Saxony, in which according to
Article 12(3) of the Saxony University Freedom Act [Hochschulfreiheitsgesetz
(SächsHSFG)], German and EU students are not charged tuition fees, but students from non-
EU countries may be.
Besides tuition fees and the recognition of university entrance qualifications from non-EU
countries (automatic in the EU as a result of the mutual recognition of qualifications), setting
German language skills for university enrollment in particular is used as a means of entrance
control in university policy. The presence of 272 696 foreign students in 2013 and courses
* The author was awarded his doctorate after having written a thesis on discrimination against EU students in
2003. He is Managing Director in a large company and Reader at the Friedrich-Alexander University in
Erlangen-Nürnberg
1
Treaty on the Functioning of the European Union
2
Act on the Freedom of Movement of Union Citizens
3
Centre for Educational Research and Innovation (Ed.), Education at a Glance 2013: OECD Indicators,
ISBN 9789264201040, fig. C4.2
4
Deutscher Musikrat [German Music Council], Studierende in Studiengängen für Musikberufe
nach Frauen- und Ausländeranteil [Students taking courses for the musical profession,
showing proportions of female and foreign students], 2013
5
DAAD, press report: Germany now the third most popular host country for foreign students, 09.07.2013
3
Copyright 2014 Walter Demmelhuber
lasting two to four years on average for a Bachelor's or Master's degree are currently making
tens of thousands of language tests of foreign students necessary each year
6
.
Even though the German Academic Exchange Service (DAAD) is calling for the number of
foreign students to be increased to 350 000
7
, universities may respond with local language
requirements to minimise additional integration costs.
The main instrument for controlling university entrance by foreigners is the level of
language proficiency. The purpose of this article is not to discuss or even question the
policy of evaluating the level of language proficiency as a way of regulating university
entrance. Good language skills can expedite and improve study progress. The purpose of
this article is actually to assess such linguistic entrance criteria in terms of European
law. Language skills should not be used more than absolutely necessary as an exclusion
criterion for foreign students.
In Germany, universities are mainly the responsibility of and governed by the laws of the
Länder. The requirement for language skills to be shown by foreign students in Bavaria is
therefore enshrined in the Bavarian Universities Act [Bayerisches Hochschulgesetz
(BayHSchG)] and similarly in other federal Länder and the Universities Framework Act
[Hochschulrahmengesetz]
Article 42 BayHSchG
(1) Citizens of another Member State of the European Union have the same status as
German citizens if they can prove that they have the language skills needed for study. Other
persons ... can be registered if they can prove that they have the language skills needed for
study.
It is striking that the Act does not specify which institution is entitled to determine the level of
language proficiency, does not define specific levels of language proficiency and does not
distinguish between the levels of language proficiency attained by EU students and students
from non-EU countries.
Article 3 Freedom of Art and Science, Research, Teaching and Study does not delegate to the
universities the right to regulate restrictions on admission and Article 12 Institutional Matters
and State Matters defines the following areas explicitly as state matters in
Art. 12 (3) 1 the regulation of university entrance, enrollment and exmatriculation,
determination of educational capabilities, setting admission numbers and the allocation of
study places …
and in so doing contradicts the rules regarding language requirements at university level.
In Bavaria, the Ordinance concerning the Qualifications for Study at the Universities of the
Free State of Bavaria and the state-recognised private Universities (Qualifikationsverordnung
- QualV) of 2 November 2007 in Article 11 Other Proof of University Matriculation -
6
For an average study period combining a Bachelor's and Master's degree.
7
DAAD, press report: Efforts to attract foreign students, 15.04.2013
4
Copyright 2014 Walter Demmelhuber
acquired abroad transfers responsibility to the body responsible for recognising certificates in
the Free State of Bavaria.
The Notice from the Bavarian State Ministry of Education and Cultural Affairs of 10 April
2013, Ref. VI.9-5 S 4521-6a.25 550 concerning the Tasks of the certificate recognition body
for the Free State of Bavaria neither describes nor delegates responsibility for setting the
language knowledge needed for academic study.
In the Bulletin for non-German citizens wishing to apply to Bavarian universities with a
foreign university matriculation certificate
8
, the certificate recognition body is instructed that
the necessary language skills are proven by the German Language Diploma of the Culture
Ministers' Conference - Second Level
9
, even though this duty is not assigned to the certificate
recognition body by the Bavarian Ministry of State.
In the Bulletin for German citizens wishing to apply to Bavarian universities with a foreign
university matriculation certificate
10
, the certificate recognition body is informed that
checking if there is sufficient knowledge of the German language remains the preserve of the
universities in the registration procedure, even though Article 12(3)(1) of BayHSchG
expressly describes the registration rules as the responsibility of the State.
Article 1 of the General Rules concerning German Language Tests for Study at German
Universities (RO-DT) in the version of the University Rectors' Conference (HRK) of
03.05.2011 and the Culture Ministers' Conference (KMK) of 17.11.2011 states that persons
without a German school education
11
are supposed to have sufficient language skills to
undertake study. In the same Article, however, different levels are defined as
recommendations and not as binding for universities. In addition, universities are expressly
empowered by local authorisation and registration rules under Article 8(3), on their own
initiative, to wholly or partially release certain groups of applicants from the obligation to
prove that they have the language skills needed for study. Language teaching courses
simultaneously to the academic degree to improve students language skills are being
proposed as well.
The application of European law to language requirements for EU students is neither evident
nor mentioned in any legislation or recommendations by HRK or KMK. Council Directive
2004/114/EC of 13 December 2004 On the conditions of admission of third-country nationals
for the purposes of study does not apply, since according to Article 1a it applies exclusively to
non-EU citizens.
Article 16 I 3,4 of the Residence Act [Aufenthaltsgesetz] and the language requirement for
study does not apply, as Article 1(2)(1) states that the Residence Act does not apply overall in
the case of EU citizens resident in Germany under the FreizügG/EU. Article 2(2)(1)
FreizügG/EU expressly includes education in the freedom of movement; it does not define
8
No. A 7/10/Da Status: January 2010 MBNichtdtHZ
9
Corresponds approximately to B2/C1
10
No. A 6/10/Da Status: January 2010 MBDtmitausläB
11
Applicants for study who have not acquired their higher education entrance qualification at a German
school, regardless of their nationality
5
Copyright 2014 Walter Demmelhuber
language requirements, however. The erection of a language entrance barrier for EU students
could therefore be declared to be null and void under the law on freedom of movement.
Who is responsible for setting language requirements is not clear at all. The Bavarian
Ministry of State, the Certificate Recognition Body, the Minister of Culture or the
University Rectors' Conference or the universities themselves might be responsible. In
reality, however, the necessary language skills are determined by the universities
themselves, without any consideration of the requirements under European law or
clarification of who is legally responsible. Universities often do not follow the
recommendations of HRK and KMK and determine their own levels of language
proficiency.
The Common European Framework of Reference for Languages (CEFR) of the Council of
Europe is used to define language skills by clearly and comparatively breaking down the
language skills of learners into six levels of competence (A1, A2, B1, B2, C1, C2). All sub-
skills (reading, listening, writing and speaking) are included. In addition, HRK and KMK also
use TestDaF
12
-institutes or DSH-tests
13
at the universities' own language centres. The three
levels B2, C1, C2 typically used at universities are approximately equivalent
14
:
B2 TestDaF 3 DSH 1
C1 TestDaf 4/5 DSH 2
C2 DSH 3
The levels that are relevant for study purposes are described as follows
15
:
B1 Can understand the main points of clear standard language on familiar matters regularly
encountered in work, school, leisure, etc.
B2 Can understand the essential content of specific or abstract subjects in a complex text,
including a technical discussion in his/her area of specialisation.
C1 Can understand a wide range of long, demanding texts and grasp implicit meanings.
C2 Can understand practically everything he/she reads or hears without difficulty. Can
reproduce facts and arguments from various written and oral sources by summarising
them in a coherent manner.
12
The initial funding for TestDaF was provided between 1998 and 2006 through DAAD from
funds provided by the Foreign Office, the BMBF (Federal Ministry of Education and
Research), the Association of German Science Donors [Stifterverbands der deutschen
Wissenschaft], the Robert Bosch Foundation and the Land of North Rhine-Westphalia.
TestDaF has funded itself entirely from examination fees since 2007.
13
German language testing for university entrance
14
Foreign language centre of universities in the Land of Bremen, comparative table of international
certificates
15
Common European Framework of Reference for Languages: learning, teaching, assessing, Langenscheidt,
2001
6
Copyright 2014 Walter Demmelhuber
B2 relates to language skills in a person's own specialist area, C1 in any specialist area and C2
can be described as almost native speaker level and is comparable with the standard of
German of a foreigner with a German education
16
after having successfully completed his/her
education in a German Gymnasium (grammar school).
With regard to the level of language proficiency requirements, the question has been raised as
to whether universities use the initial language level as a means of control of access in
university policy and hence require more than is absolutely necessary
17
. This concerns, in
particular, universities' interest in using more demanding language requirements as a way of
keeping the quality of study high from the outset, instead of using accompanying 'Hort der
Bildung' (shelter of education) language courses to guide (EU) students to academic success.
In terms of discrimination against EU students, the question therefore arises as to whether
these requirements are proportionate in a European context, since language requirements for
foreign students are a barrier to entrance that is not faced by foreigners with a German
education or German students.
The definition of proportionality is used by the ECJ on a regular basis
18
According to the Court's case-law, national measures which restrict the exercise of
fundamental freedoms guaranteed by the Treaty can be justified only if they fulfil four
conditions: they must be applied in a non-discriminatory manner; they must be justified by
overriding reasons based on the general interest; they must be suitable for securing the
attainment of the objective which they pursue; and they must not go beyond what is necessary
in order to attain that objective (cf, in particular, judgments of 30 November 1995 in case C-
55/94, Gebhard, ECR 1995, I-4165, Paragraph 37, and judgment of 9. March 1999 in case C-
212/97, Centros, ECR I-1999, I-1459, Paragraph 34).
The 2011 DAAD report on foreigners with a German education also states that insufficient
attention has been given hitherto to teaching the necessary language skills to foreigners with a
German education
19
. Foreigners with a German education have a dropout rate that is twice
that of German native speakers undertaking a course of study. For most countries of origin,
the drop-out rate for persons without a German education
20
is the same as or slightly above
the drop-out rate for foreigners with a German education
21
. However, because persons without
a German education from Austria display drop-out rates that are 1.5 times higher than those of
German students, there is a need to focus on more than just language deficiencies in
connection with drop-out rates. Austrian women undertaking study in Germany display the
16
Foreign students at German universities who have enrolled in Germany or at a German school in another
country
17
Essen linguistic scripts, TestDaF and DSH - unequal language tests in comparison, 2002
18
Judgment of the Court of Justice of 04/07/2000, Haim, Case C-424/97, Paragraph 57
19
DAAD, Foreigners with a German education 2011, p. 48
20
Only in the case of students from Western Europe is the drop-out rate of persons without a
German education much greater than foreigners from the same countries of origin with a
German education. Since this is not the case for other countries of origin, it is necessary to
consider different causes.
21
DAAD, Foreigners with a German education 2011, p. 52
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Copyright 2014 Walter Demmelhuber
second or third highest drop-out rate among foreigners undertaking study in Germany whose
native languages are not German unless they come from Austria
22
.
It seems more likely that dropping out from university should be seen in a more differentiated
context. It might be the case, for example, that a large number of foreigners choose courses in
the natural or engineering sciences, in which there is also a larger proportion of drop-outs
among German students. It is also conceivable that foreign students start courses in Germany
(entry to which is possible only to a limited number of students in their home countries) in
order to return to their home countries in the second or third semester after having been
accepted on such courses there. Both these factors would significantly distort student drop-out
statistics and would therefore not permit any relevant comparison with the level of language
proficiency that is necessary.
Because foreigners with a German education normally have a knowledge of German
equivalent to C2 as a result of having taken the German Abitur examination, there is no
conclusive link between native language, level of German through Abitur and dropping out of
education.
Statistically speaking, foreigners with or without a German secondary education display
a much higher study drop-out rate from university than German native speakers
undertaking a course of study. However, because the difference in the drop-out rates of
foreigners with or without a German secondary education is not very great, the reasons
need to be sought mainly outside the area of language skills. Measures to enhance
language skills during academic study are nevertheless useful.
It is not realistically possible for persons without a German education and whose native
language is not German to acquire the necessary language skills in addition to studying their
chosen subject at Bachelor level in the short and medium term. Without preparatory or extra
work, language courses would occupy up to 50% of typical hours per week per semester
23
. At
least two years would be needed to be dedicated to full-time language study to move from A1
to C2 calculated purely on the basis of hours per week, without any further commitments
24
.
Nor should it be forgotten that the time required to reach the higher levels of proficiency in a
language rises disproportionately. If universities raise their language requirement, this
inevitably leads to students not having sufficient time to meet the requirement. For example,
European students taking a Bachelor's degree outside Germany can, through extra study, only
with great difficulty achieve the level of language proficiency required by German
universities for them to undertake a Master's degree, and this is a direct barrier to European
academic mobility.
It is striking that in a European comparison based on sampling
25
, the language requirements
for incoming and outgoing ERASMUS students are lower than for full-time students,
22
DAAD, Foreigners with a German education 2011, p. 53
23
Information concerning the Common European Framework of Reference for Languages, Language
Centre of the University of Bamberg, 2007,p. 4
24
Language course level, SG Education AG, 2013
25
Freie Universität Berlin, Hochschule für Musik Nürnberg, University of Leeds, Universidad de
Valencia, Universita degli studi di Firenze, Technische Universiteit Delft, Universidade de
Coimbra, Wroclaw University of Technology
8
Copyright 2014 Walter Demmelhuber
although the ECTS
26
of ERASMUS students must be acquired under the same conditions. As
a rule, the language requirements extend from none in a few cases, to A2-B1 in most cases
and up to B2 in a few cases again. To make the anomaly even more striking, ERASMUS
students have already completed a number of semesters and the language requirements
should, in theory, be higher than those imposed on foreign full-time students at the start of
their studies in Germany due to the advanced academic content.
It should also be noted that the levels of language proficiency required at German universities
differ considerably, even within the same institution, which directly contradicts the
prohibition on arbitrary decisions under EU law.
For example, Munich Technical University requires levels in the range of B2-C2 proven by
various test centre methods for enrollment, without considering comparability in greater
detail
27
. Depending on the faculty, the requirements of the University of Erlangen-Nürnberg
range from no proof of language skills at all up to C1 level. It is striking that even speciality
tests in German are held only at DSH-1 level
28
. One anomaly at the Free University of Berlin
is that for courses requiring a high level of English, students who have gained their A-levels
and therefore university access in an English-speaking country must nevertheless prove their
proficiency in English in a language test
29
.
A comparison of academic teacher degrees with approximately the same content produces the
following results at different musical universities in Germany:
Mannheim University of Music B2 suggested (equivalent to DSH-1 for teacher training
and other courses
30
)
Detmold C1 Musical University (may be submitted two semesters later with language
course conditions; i.e. at the end of the course in the case of a 1-year Master's degree)
31
Nürnberg Musical University C1 (for Master's in teacher training).
32
Würzburg Musical University C2 (for teacher training courses). Alternatively prior study
in Germany
33
A range from B2 to C2 for teacher courses at different musical universities shows that the
quality-of-study argument is invalid and that the level of German is an instrument for
controlling the selection of foreigners in university policy in order to reduce or control the
relative numbers of foreigners at universities.
26
European Credit Transfer System
27
www.tum.de, Study requirement for foreigners applying for courses, 11.12.2013
28
www.fau.de, Knowledge of German for Master's courses, 12.12.2013
29
www.fu-berlin.de, Language entrance requirements at the Free University of Berlin, 12.12.2013
30
Rules on enrolment, 06.02.2013, Article 12
31
www.hfm-detmold.de, Information on language testing, 2013
32
Rules concerning qualification requirements, 28.01.2013. Article 3.5.2
33
www.hfm-wuerzburg.de, Foreign applicants Proof of knowledge of the German language, 2013
9
Copyright 2014 Walter Demmelhuber
Because musical universities have a proportion of foreign students that is 2.5 times higher
than German universities on average, the introduction of tuition fees solely for non-EU
students is now being discussed by politicians in Baden-Württemberg (the principle of
equality prohibits the introduction of tuition fees for foreign students in general if German
students are not also affected). This policy has already been adopted in Saxony, where EU
students do not pay any tuition fees; foreign students from non-EU countries must pay them,
however. Musical universities might therefore also use higher than average linguistic entrance
barriers to regulate the proportion of foreign students.
It is worth noting in this context that the rules for the award of a doctorate generally do not
require formal proof of a knowledge of German. The necessary language skills are regulated
solely by individual understanding between the PHD-candidate and doctorate supervisor.
German universities determine the necessary levels of language proficiency for
themselves, at university or faculty level. There are very different language
requirements even for what seem to be 100% comparable courses. In many cases,
reference is made to recommendations by the HRK, while in others mainly local but not
always comprehensible standards are applied. There is no proportionality or
comparability under European law.
Naturalized citizens must be considered separately from citizens of EU States or other
foreigners. Because some universities distinguish between German citizens and foreigners,
not between foreigners with or without a German education, the level of language proficiency
required for naturalization in Germany must also be considered for comparison purposes.
Proof that the B1 level
34
has been reached is needed to acquire Germany nationality. It would,
however, be contradictory and disproportionate not to require German citizens applying for
university to submit proof of language proficiency while at the same time requiring European
students to provide proof of proficiency at a higher level than B1.
Precedents and recommendations regarding the exercise of a profession by EU citizens (for
example lawyers
35
, doctors
36
or pharmacists
37
i.e. professions that require the ability to
converse with clients at a high level), in particular in the cases of Haim and Wilson cited
above, also show the consistency with which the ECJ opposes national language requirements
and denies this right to set requirements at a national level inconsistently. Representative
bodies have now adapted to this situation and only make recommendations that can be
defended as being reasonable, e.g. for B2 level (knowledge of the language in own specialist
area). It should be noted that a requirement for a student should not be greater than or equal to
the requirement for a person exercising the profession at an advanced level.
For over 30 years, the established practice of the ECJ has ruled that European legal principles,
in particular the principle of equality and the resulting prohibition on discrimination, have
priority over and define the limits of national university policy and the resulting regulations at
34
Naturalization in Germany, the Federal Foreigners Representative, 2013
35
Judgment of the Court of Justice of 19/09/2006, Case C-506/04.
36
Foreign doctors should possess specialist language skills Marburg Doctors' Association,
03.11.2012 B2 for doctors
37
Approval as a pharmacist, local government of Cologne B2 for pharmacists
10
Copyright 2014 Walter Demmelhuber
federal and Land level. In particular, due to Forcheri
38
(higher tuition fees for EU students on
entry into professional education prohibited), Gravier
39
(access to education is subject to EU
law), Blaizot
40
(university education is equivalent to professional education) and other
41
cases,
the ECJ has progressively established that although the organisation of education and
educational policy are not as such included in the areas that were made the responsibility of
Community bodies in the Treaty, the conditions for access to professional and university
education nevertheless fall within the scope of the European treaties even if the students
concerned moved to another country solely for the purpose of study.
The Förster case
42
can also lead to the conclusion that
However, once a student, after five years' residence, has obtained the right of permanent
residence, he or she has exactly the same rights as a local student.
if he/she has duly enrolled (and passed a general admission examination if this is also a
requirement for national students), no proof of language proficiency may be required, as the
necessary language skills can be expected to have been acquired as a result of the five years'
residence already automatically.
One way of clarifying language discrimination in Germany would be to refer the following
question to the European Court of Justice for a preliminary ruling following a national
complaint in Germany on the basis of Article 267 TFEU:
The ECJ should clarify whether, in view of the judgment in Gravier Case 293/83 and the
application of Article 18 TFEU and/or the FreizügG/EU and well-established case law and
legislation, universities or competent ministries may require from students of the EU who
neither possess the nationality, nor native language nor A-levels of the host country
43
to
submit additional proof of language proficiency.
Article 42 BayHSchG contains the following provision
Citizens of another Member State of the European Union have the same status as German
citizens if they can prove that they have the language skills needed for study.
Article 42 BayHSchG does not require German citizens who have
attended school up to A-levels (Abitur) in another country (persons without a German
education),
but speak little or no German (e.g. as a result of dual nationality or through acquisition of
German nationality outside Germany solely through descent) or
38
Judgment of the Court of Justice of 13/07/1983, Forcheri, Case 152/83 ECR 1983, p. 2323
39
Judgment of the Court of Justice of 13/02/1985, Gravier, Case 293/83 ECR 1985, p. 593
40
Judgment of the Court of Justice of 02/02/1988, Blaizot, Case 24/86 ECR 1988, p. 379
41
European Commission - Education and culture, rights as a student abroad, 2011
42
Judgment of the Court of Justice of 18 November 2008, Förster, Case 158/07
43
but have obtained in their own country A-levels that are recognised in the host country - in
Germany, a German Abitur is normally considered to be proof of proficiency in the language,
such persons being classified as having been educated in the country, regardless of nationality
11
Copyright 2014 Walter Demmelhuber
through naturalization (and proof of B1 in German) to once again prove their language
skills before starting their studies.
These circumstances give rise to the following constellations in Germany:
different levels of language competency are required for different Bachelor's degrees. This
also applies to Master's degrees.
different levels of language competency are required by different universities for the same
Bachelor's degree. This also applies to Master's degrees.
students who have German nationality by descent but speak little or no German are not
normally required to submit proof of their knowledge of German.
students who have acquired German nationality through naturalization and must have
provided proof of B1 for this purpose are not required to submit further proof.
In the cases Haim and Wilson (424/97 and 506/04 respectively), the ECJ has consistently
ruled that the Member States must exercise the greatest restraint in setting language
requirements and that such requirements must be non-discriminatory, moderate and
appropriate for achieving the objectives. The study drop-out rates for foreigners with a
German education (non-German citizens not speaking German as a native language, but
having passed the German Abitur) and persons without a German education are similar but
much higher in comparison to German citizens, leading to the conclusion that the failure to
successfully complete studies lies elsewhere. Foreigners with a German education are also not
normally subject to such stringent language requirements as persons without a German
education, as they are often exempted from language tests.
In Germany, universities normally set themselves very different levels of language
proficiency (normally B1 - C2) to be attained by students before starting their studies. No
distinction is made between students from EU and non-EU countries for this purpose.
ERASMUS students are normally only required to have a B1 level of language proficiency.
The question should also include consideration of the extent to which it is important that the
acquisition of language beyond a certain level (e.g. above B1) takes up so much time that it
cannot be acquired in parallel to normal academic study, but only full-time or over a very long
period. In the case of students in particular, consideration might be given, for example to the
fact that a Bachelor's student taking a course in one country must actually be capable of
acquiring the language skills needed for taking a Master's degree in another country.
Otherwise, it would mean that if language requirements are higher, university entrance would
be denied to most EU students who have not already learnt the language at school over a long
period. Account should also be taken of the fact that knowledge of the language improves
considerably during the first few months in the host country and a requirement regarding the
level of language proficiency does not take account of this.
The ECJ should be asked to decide whether German universities and competent ministries are
free to determine the entrance level of language proficiency. Or alternatively whether
European legislation and case law require German universities and ministries to consistently
12
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apply to students from European Member States (but not to students from non-EU States)
European legal criteria that do not exceed the absolutely necessary (or nothing at all).
The following questions arise in this regard:
1) Are the Member States, acting on their own or through their respective competent
institutions, entitled and free to require students who have obtained a recognized
higher education entrance qualification to additionally submit proof of proficiency in
the respective national language? Or is this an infringement of Article 18 TFEU,
FreizügG/EU and/or well-established case law of the ECJ and therefore to be left to
the European student to decide as responsible adults?
2) If a language requirement as set out in 1) is considered to be valid,
a. can it be concluded from the case of Förster, 158/07, that no proof of language
proficiency can be demanded after five years' residence, since unequal
treatment in comparison with a citizen of the host country is explicitly
prohibited?
b. should the Member States conclude from the rulings in Haim and Wilson and
other cases that Member States must exercise the greatest restraint in setting
language requirements and that they must not be discriminatory anywhere in
Europe, or should they set higher entrance criteria to restrict numbers, in order
to ensure from the outset that the course will proceed without problems from
the university's viewpoint? Should the interests of the students or of the
universities be given priority in this regard?
c. Are the Member States also obliged to use language criteria as applied to
naturalisation, for example, to prevent possible discrimination in comparison
with their own citizens? In this case, what would happen if European Member
States set different criteria for naturalisation or similar integration measures,
resulting in unequal treatment within the EU? Is the setting of a language
criterion that is higher than that required for naturalisation to be regarded in
discrimination against EU students in this regard?
d. Must the Member State ensure that the same levels of language proficiency are
required at different universities offering the same academic degree, in order to
avoid unequal treatment at regional level?
e. Is it permitted depending on the nationality of a candidate to determine
whether he/she is exempt from a language requirement or must language skills
always be tested? This question arises from the circumstance that many
universities do not require German citizens to submit proof of level of
language proficiency, whose native language is not German, while other
universities do require such proof from German citizens whose native language
is German but who have graduated at a school gaining their A-levels abroad in
a foreign language (Germans without a German education). A foreigner with a
German education is normally exempt from language testing.
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Copyright 2014 Walter Demmelhuber
These questions are intended to determine whether (German) universities individually are free
to set levels of language proficiency in order to use them as a quality criterion or means of
controlling entrance of EU students. Or whether a European student can decide for
himself/herself as a responsible adult, whether his/her level of language proficiency is
sufficient for the course he/she is applying for.
Conclusion
The responsibility for language criteria regulating the entry to academic degrees is unclear in
Germany. On the one hand, state legislation for universities considers enrollment to be the
responsibility of the Länder, but in reality universities define the levels of language
proficiency they consider to be necessary at local level, at their own discretion and applying
their own criteria. The levels communicated by the HRK and KMK are recommendations, not
legal requirements, and universities sometimes set levels above or below them.
This leads to the conclusion that some universities are pursuing goals of university policy,
recommendations of the HRK and KMK do not contain any references to European law and
EU students are treated in the same way as students from non-EU countries, with no account
being taken of the prohibition on discrimination under European law.
The ECJ has consistently ruled that regulation of university entrance must comply with
European case law and legislation and that this must be observed by the countries and their
universities when they set standards and in their management practice.
To avoid discrimination against EU students, the comparative criterion of B1 used for
naturalization purposes could be applied if necessary. In case of doubt, since students are
mature decision makers, EU students should be left to decide for themselves whether their
own language skills are appropriate for study at a university.
In any case, it seems likely that the current method of allowing individual institutional
language entrance criteria which depend on the university or faculty is untenable. A case for
the principle of subsidiarity does not apply since it is actually the root cause for discrimination
in this case.
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