Constitutional complaint against the organisational structure of the Hanover Medical School mostly successful

Press Release No. 66/2014 of 24 July 2014

Order of 24 June 2014
1 BvR 3217/07

In a decision published today, the First Senate of the Federal Constitutional Court found that significant parts of the Lower Saxony Higher Education Act (Niedersächsisches Hochschulgesetz – NHG) concerning the organisation of the Hanover Medical School (Medizinische Hochschule Hannover – MHH) are incompatible with the Basic Law (Grundgesetz – GG). Art. 5 sec. 3 sentence 1 GG requires that academics participate in all academically relevant decisions. This also applies to medical schools and relates not only to decisions regarding research and teaching, but also to decisions on organisational structure, the budget and on patient care, which is inseparable from teaching, and on research in university medicine. If such academically relevant decision-making powers are transferred to the presidency, here: an executive board, the Academic Senate must be adequately involved in such decisions, as well as in the appointment and dismissal of the board. The state legislature has until 31 December 2015 to revise its legislation.

Facts of the Case:

The complainant is a university professor and a member of the Academic Senate of the MHH. His constitutional complaint challenges the statutory provisions that transfer important decision-making powers within the MHH from the Academic Senate to the executive board. The challenged provisions relate to the appointment, reappointment and dismissal of the three board members, § 63c secs. 1 to 6 NHG, and to some of its powers, § 63e NHG.

Key Considerations of the Senate:

1. The freedom of research and teaching (Art. 5 sec. 3 sentence 1 GG) obliges the state to provide for the functioning of academic work within universities. It must ensure by way of appropriate organisational means that the individual fundamental right to free research and teaching is preserved as much as possible, taking into account additional legitimate tasks of academic institutions as well as the fundamental rights of the various parties involved. In order to do so, the legislature possesses wide discretion; it is not limited to traditional models of university organisation. However, organisational arrangements are not compatible with Art. 5 sec. 3 sentence 1 GG if they lead to an overall structure that puts the freedom of research and teaching at risk.

Adequate participation of academics in an institution of higher education, which is guaranteed as a fundamental right, is required in all decisions of academic relevance. These are not only decisions that concern research projects or the curriculum, but also decisions relating to planning the development of an institution and the arrangements that govern how the organisation is run. Academically relevant decisions also include decisions on the organisational structure and on the budget, since those could render the fundamental right of academic freedom ineffective. Insofar as academic work is inseparably intertwined with patient care, such decisions are also academically relevant.

As long as academics can in fact sufficiently participate in academically relevant decisions, the legislature is free to design the manner in which such participation is put into practice, within the overall framework of the academic organisation. Pluralistic representative bodies are of central importance in academic self-organisation. This does not mean that such bodies generally take precedence over management bodies; decision-making powers may, however, only be assigned to management bodies if they are limited in terms of content and organisationally secured in such a way that there is no structural danger to the freedom of academic work. The more fundamentally and the more substantially those academically relevant decision-making powers that affect staffing and substantive matters are taken away from collegial bodies of academic self-administration, the more the self-governing body must be involved both in the appointment and dismissal of the management as well as in its decisions. The legislature must take this into consideration throughout the whole organisation.

At the same time, the state has a responsibility for patient care, which is, in university medicine, closely intertwined with research and teaching. The legislature must on the one hand respect freedom of academic work, and must on the other hand guarantee the best possible patient care; under Art. 2 sec. 2 sentence 2 in conjunction with Art. 20 sec. 1 GG, it has a constitutional duty to protect these constitutionally acknowledged interests of high importance.

2. The provisions of the Lower Saxony Higher Education Act regarding the management structure of the MHH fail in significant aspects to satisfy these constitutional requirements.

a) There are well-founded constitutional objections to an overall organisational structure in which crucial decisions regarding development, organisation and resources for research and teaching are essentially allocated to the executive board and taken away from the Academic Senate.

aa) However, there is no objection under constitutional law to the decision of the legislature to place the management of an academic institution of higher education in the hands of a three-person executive board. The Basic Law contains no provisions concerning higher education policy that stipulate any particular model of governance.

bb) Yet the provisions at issue do not guarantee that the Academic Senate can adequately participate in fundamental decisions that are of academic relevance. While the Academic Senate is given the power to make decisions concerning the fundamental elements of development plans, no such planning has been undertaken at MHH since 2005. Instead, all fundamental matters are decided by the executive board and the responsible state ministry by way of agreements on objectives, to which the Academic Senate is merely permitted to give an opinion. The provisions as a whole are thus deficient in so far as they clearly allow the Academic Senate’s planning rights to be undermined; this lack of participation by academics cannot be compensated for by the influence they have on the appointment and dismissal of the management body.

cc) There is a lack of decisive participation by the Academic Senate, with its wide range of understandings of academic matters, in decisions concerning the organisation of MHH. Such decisions are likewise allocated to the executive board, where the board’s members for research and teaching as well as the member for financial management and administration possess veto rights; and the whole board is merely required to consult the Academic Senate. Since organisational decisions also affect future academic development, participation that is restricted in such a way is not compatible with the requirements of Art. 5 sec. 3 sentence 1 GG.

dd) The Academic Senate’s inadequate participation in the executive board’s decisions on the finance plan, on distributing resources as well as investment and personnel budgets to the organisational units, and on providing resources for teaching and research may result in a structural danger to academic freedom. Fundamental economic decisions, such as those concerning the finance plan of an institution of higher education, are academically relevant because research and teaching depend on resources. Within its margin of appreciation, the legislature is not obliged to guarantee academic freedom by providing rights to participate. In Lower Saxony, there are however no budgetary arrangements which could contribute to protecting academic freedom, for instance by attempts to counter the risk of patient care being internally cross-subsidised with resources designated for research and teaching, an aim that could be achieved by a requirement of separate accounting.

b) The decision-making powers allocated to the executive board’s member responsible for research and teaching are highly problematic within the chosen structure. Creating a member’s sole responsibility for research and teaching on a multi-member executive board of a university clinic does indeed contribute to protecting academic freedom, as long as the Academic Senate has a significant influence on the appointment and removal of this member. However, this cannot completely replace the Academic Senate’s participation in such decision-making, as a representative body of academic self-administration.

c) In the overall system at issue, the structural risks to academic freedom are not compensated by the arrangements made to identify candidates for the board, and for appointing, re-appointing and removing the executive board.

aa) There are well-founded constitutional objections regarding the fact that the Academic Senate may merely comment on proposals for the executive board’s member for financial management and administration. This member has an obligation both to patient care and to scholarship, and budgetary decisions tend to affect the actual possibility of conducting medical research and teaching.

bb) The right of the responsible state ministry to appoint the proposed member of the executive board may not allow for the ministry to freely refuse such appointments according to its own yardsticks of personnel policy. Such matters are not at the free political discretion of the state. In particular, the ministry may refuse to appoint the executive board’s member for research and teaching only if the reasons are substantially related to the protection of academic freedom.

cc) There are are well-founded constitutional objections regarding the fact that the appointment of the executive board’s members is preceded by a candidate identification process in which the participation of academics is not adequately guaranteed. A candidate identification committee is able to decisively filter who will be considered as a member of the executive board. The Academic Senate must therefore be allowed to participate extensively in it, to rule out any risks to academic freedom.

dd) The arrangements for re-appointing or extending the term of office of the executive board of an institution of higher education are basically subject to the same requirements concerning the involvement of the representative body of academic self-administration. However, the legislature may take into account whether this body is involved in the initial appointment of the board.

ee) Regarding the removal or dismissal of executive board members, there are no concerns under constitutional law as to a requirement for the state to confirm any such decision made by the institution of higher education. However, such a right for the state of oversight may not run counter to the self-determination of the bearers of fundamental rights. Therefore, constitutional concerns arise if the responsible state ministry has discretion in the matter. There are considerable concerns if a dismissal depends on a qualified majority that cannot be achieved by the academics alone and if removal is moreover subject to narrowly defined substantive conditions. While protecting the persons in question requires decisions on dismissal to be bound to substantive criteria, safeguarding academic freedom mandates that this be understood in a way that when the required majority in the representative body is met, this suffices as legitimate cause for dismissal since such a vote serves as indication that a management body has lost the confidence of the academics.