By Prof. Dr. Dr. h.c. Carl Baudenbacher, former President of the EFTA Court (2003-2017), Baudenbacher Kvernberg, lawyers and advisors, Zurich/Oslo/Stavanger/Brussels
Education policy is generally not considered to be at the center of European integration. And yet, systematically influencing the institutions, content and processes of education has been an important concern of the Union for decades. At university level, the ERASMUS exchange program plays a special role. Exchanges can only work if the achievements of students abroad are recognized at their home university. However, there are first-class universities in Europe outside the EU, and indeed the best are located in the United Kingdom and Switzerland. The University of Oslo (“UiO” – see picture) in Norway also has an excellent reputation. It is ranked 89th in the world in the US News Rankings. It is therefore right that a system of recognition of study abroad has been created in which the EU occupies an important place, but which extends beyond the EU.
This system is based on the Council of Europe’s 1997 Lisbon Convention on the Recognition of Qualifications concerning Higher Education in the European Region. More than 50 countries, among them Norway, are Contracting Parties. An important measure to promote academic mobility is the recognition of studies undertaken and certificates, diplomas and degrees obtained in another state of the European region.
A class action against UiO
In May 2023, a class action lawsuit was filed in the Oslo District Court (“Oslo tingrett”) against University of Oslo (UiO) for systematically failing to protect the right of students to have their foreign studies recognized. If the action is successful, the award will be over half a billion NOK (42 million EUR). At the center is student Ove Kenneth Nodland, whose Oxford degree was not recognized by UiO. Nodland realized he was just one of many in the same situation. After settlement talks with UiO were unsuccessful, he went through 758 recognition decisions and concluded that systematic misconduct had occurred. Oline Sæther, President elect of the National Union of Students in Norway, supports the case going to court. In a public statement, she said: “We have experienced for several years that the university applies the law with a free hand that does not benefit the students.”
Relevant international law is the Lisbon Convention (which is partly based on EU secondary legislation incorporated into the EEA Agreement in force in Norway), the European Convention on Human Rights and the EU Charter of Fundamental Rights (which, according to the case law of the EFTA Court and the literature, may also apply in the EEA/EFTA countries). Either UiO management failed to consider the rights of students, or management knew the legal situation without bothering. In either case, UiO has been at least grossly negligent. The Lisbon Agreement, the EEA Agreement which has been transposed into Norwegian law, and the ECHR are directly applicable in Norway.
“Substantial differences”
If an educational institution does not want to recognize the foreign education, it must prove that there are substantial differences between the education completed abroad and its own education.
In the period from Jan. 1, 2020, to Dec. 31, 2022, the University of Oslo made at least 750 decisions on professional recognition of higher education. In 742 of these decisions, there was no reference to a legal basis. 98% of students who applied for admission were not informed of their rights. About 2/3 of the applications for recognition of foreign education that had not taken place through the UiO’s own exchange program were rejected. The plaintiffs found only one decision (dated 10/18/2022) where the rejection was authorized by the School and Higher Education Act at the first processing and justified by the fact that there were “substantial differences” between the educations. This means that several hundred students were forced to repeat courses that should have been recognized by the UiO and to take a course that could have been taken by other students. Nodland believes that as many as 2,000 students may have been affected. As a result, their academic progress has been unnecessarily delayed, which will have financial consequences on multiple levels. These financial consequences are significant both for the students, who are prevented from entering the workforce, and for society.
UiO’s unbelievable methodological argumentation
A class action may be brought under Norwegian law if the class proceeding is the most appropriate method to adjudicate the claims. According to the plaintiffs, this is the case here.
UiO, in its response to the advance notice of claim, argues that the term “substantial differences” should be interpreted according to a “natural, linguistic understanding” and believes that something can be derived from this to support its position. The plaintiffs are not aware of any modern legal system, national, European, or international, in which a purely grammatical approach to interpretation is sufficient. With this assertion, UiO flouts the methodology of its own law school. When the class action was lodged, UiO had no comment.
The students seek invalidation of the rejection notices, a declaration that UiO’s admissions practices violate the above-mentioned national and international law, and compensation for the financial damage and violation of the right to education. In detail, they seek an order that the UiO pay students whose application for admission to higher education was rejected without proof of “substantial differences” during the period from April 1, 2003 to March 31, 2023, an amount determined at the discretion of the court, capped at NOK 555,200,000, plus statutory default interest from April 27, 2023 until payment.
There has never been any doubt that education and broadening horizons are of the highest relevance to economic success. Of course, you can’t tell in advance how court proceedings will turn out. But I share the opinion of UiO Professor Mads Andenas who is supporting the action that the students have a good case. The verdict will have a precedent-setting character. It cannot be ruled out that similar practices occur at other European universities. There is a tendency here and there to consider academic achievements made at one’s own institution as higher than achievements made abroad. One must speak of “educational patriotism”.
