Exemplary legal proceedings: expelled student filed a law suit against the technical college

An expelled student (hereafter "claimant") filed a law suit against the Technical College (hereafter "defendant") due to unjustified resolution of the education contract and due to unlawfull collection of lump sum cost-contributions in addition to the tuition fee.

The claimant entered into a part-time bachelor education contract with the defendant. Previously the claimant had completed two technical university and technical college studies and is working already for several years as a civil engineer. He is registered at the competent chamber of civil engineers.

According to § 12 FHStG (Technical College Study Act) the claimant sought the approbation of introductory or basic subjects of the first semester due to his proven expertise in the relevant technical subjects. In accordance with § 12 Abs 2 FHStG also special knowledge or professional practice experience is relevant for the approbation; this is particularly true for part-time courses and degrees.

This provision was apparently not respected/recognized by the defendant and the claimant only got approbated a fraction of the requested courses. The claimant has filed an appeal against this decision as provided for in the FHStG. 

Subsequently, the claimant was informed by the defendant, that the approbation of the other subjects was rejected finally and that he has forfeited his first exam date concerning a subject, which he sought to have approbated, due to unexcused absence from the exam. However, at the time of the first exam date the approbation process was not yet completed. The claimant was therefore entitled to assume that this subject will be approbated because of his technical education and professional practice experience.

Furthermore, by the same letter the claimant was informed that according to the academic regulations of the defendant he did not fulfil the mandatory attendance at the course and has thus forfeited another exam date (= 1. possibility to repeat the exam). In this regard it is not able that, first, the mandatory attendance of the course has not been communicated to the students in the prescribed manner (as provided for in the study and examination regulations of the defendant) and, second, that the FHStG stipulates that an exam date can only then be forfeited if the no show at the exam date is not sufficient justified. In addition, the claimant has regularly attended the course in question, so even if the compulsory attendance would have been rightfully announced, the claimant would have fulfilled it.

Finally, the claimant was simultaneously informed of the date for the final exam by an examination board. However, the claimant informed the chairman of the board of the examiners already 4 1/2 hours later that he will not be able to take the exam on that particular date because of a surgery that was already long planned. Immediately after the surgery and the release from the hospital the claimant faxed the confirmation of stay/treatment to the defendant.

Subsequently the claimant was informed by the defendant that his education contract was dissolved for failing to attend the exam before the examination board before the examination board without sufficient reason. The claimant was also refused to make use of the possibility of the repetition of an academic year as a result of a negative assessment of the exam before the board examination as provided for in the FHStG.

The competent civil court will therefore have to decide in the ongoing exemplary procedure on the following questions:

• Has the approbation of the courses been rightly rejected by the defendant or was the defendant obliged to approbate the courses as requested due to the previous education and the professional knowledge of the claimant?
• Is the participation in the courses and the attendance of an exam during an ongoing approbation procedure mandatory?
• Can the individual examination regulations of a particular College postulate the far-reaching consequence (deviating from the regulations in the FHStG) of an automatic loss of a possibility to take an exam if the mandatory attendence was not fulfilled? Even if the required attendance rate was not communicated to the students in the form prescribed in the study and examination regulations of the particular College?
• Is the no show of the claimant at the exam before the examination board due to a long planned surgery to be viewed as an “insufficient reason”, although the claimant informed the defendant on time and immediately after his release from the hospital also transmitted a corresponding confirmation to the defendant?

Further plea raised by the claimant alleges the collection of lump-sum cost-contributions by the defendant in addition to the tuition fees. According to the FHStG the collection of lump sum cost-contributions exceeding the legal maximum is prohibited. Only the collection of individually incurred costs is possible, but these have to be accounted for individually with each student.

In the present case the defendant imposes each semester on all students an equal fee in addition to the legal maximum and requires the payment simultaneously with the tuition fee. An individual accounting with each student – as required by law – does not take place. The present court will therefore have to decide whether this approach of the Technical College is lawful or not.

We will report on the further development.