Federal Constitutional Court - Press office -
Press release no. 104/2004 of 26 November 2004
Order of 26 October 2004
– 1 BvR 911/00, 1 BvR 927/00 and 1 BvR 928/00 –
Federal Constitutional Court: Constitutional complaint against
Brandenburg Higher Education Act unsuccessful
The First Senate has rejected, in part as inadmissible and in part as
unfounded, the constitutional complaint lodged by faculties and
professors of two Brandenburg universities against provisions of the
Brandenburg Higher Education Act (Brandenburgisches Hochschulgesetz –
BbgHG) by which the organisational structures of the higher education
institutions of the Land (state) Brandenburg were altered.
Legal background and facts of the case:
Brandenburg higher education law was reformed by the Amending Statute
(Novelle) of 20 May 1999. The Act follows a guiding principle which has
been applied with similar objectives in numerous amending statutes
reforming the higher education acts of the Länder (states). This is a
reform of organisational structures, which is above all characterised by
a strengthening of the management bodies (president; dean). The
collegial bodies retain policy and supervisory powers Further key points
of that guiding principle are the co-option of personnel from outside
the university by university councils, new public control systems,
evaluation and assessment, and performance oriented allocation of human
and physical resources. By their constitutional complaint, the
complainants allege that the contested provisions infringe their
fundamental right under Article 5.3 sentence 1 of the Basic Law
(Grundgesetz – GG) (academic and scientific freedom).
The grounds of the decision state in essence:
The constitutional complaints are in part inadmissible because, in
particular, there is no possibility of an infringement of fundamental
rights. In part, the constitutional complaints are also inadmissible
from the point of view of subsidiarity, since the complainants can
obtain legal redress by bringing the matter before the
non-constitutional courts.
In so far as they are admissible, the constitutional complaints are
unfounded. The contested provisions are compatible with Article 5.3
sentence 1 GG.
In addition to an individual freedom, the guarantee of academic and
scientific freedom also contains a value-deciding fundamental provision.
The state must take responsibility for the idea of a free science and
scholarship and help to translate it into a reality. The organisation of
universities must therefore be regulated in such a way that, within the
university, free science and scholarship are possible and can be pursued
without being under threat. The constitutional review of the
compatibility of organisational provisions with Article 5.3 sentence 1
GG must focus on whether those provisions create structures which may
jeopardise free scientific activity and task fulfilment. As long as the
legislature ensures a sufficient degree of organisational self
determination for the holders of fundamental rights, it is entitled to
regulate scientific and academic activity as it thinks fit. The
legislature is not only free to develop and trial new models and control
systems; it is even obliged to reform existing organisational forms in
keeping with the times. The provisions which are admissibly contested
satisfy those constitutional criteria.
1. The strengthening of the powers of monocratic management bodies is
compatible with Article 5.3 sentence 1 GG, provided that their activity
is limited in terms of content and subject to organisational safeguards
in such a way that academic and scientific freedom is not structurally
jeopardised.
a) The coordinating competence of the management bodies (§ 65.1 sentence
4 no. 3, § 73.2 sentence 3 BbgHG) is constitutionally unobjectionable.
The provisions on freedom of teaching and research (§ 4.1 and 4.2 BbgHG)
ensure that the coordinating power may not be used to interfere with
freedom of teaching and research. In addition, there are rights of
supervision and information for the collegial bodies vis à vis the
management bodies (§ 67.2, § 74.2 BbgHG), the right to vote the
management bodies out of office (§ 65.4, § 73.1 sentence 4 BbgHG) and
the power of the faculty council to participate in matters concerning
the coordination of teaching and research (§ 74.1 no. 5 BbgHG).
b) Nor does any risk to academic and scientific freedom follow from the
subsidiary residual competence of the faculty managements (§ 73.2
sentence 2 BbgHG). That competence is limited, in particular, by the
competences of the faculty councils, which are listed in § 74.1 BbgHG.
Moreover, it is made clear by § 4.1 and 4.2 BbgHG that the exercise of
that competence by the faculty management may not result in any
impairment of research and teaching.
c) The conferring of authority to teach by the university management and
of lectureships by the faculty management (§ 53.1 sentence 2 and § 55.3
sentence 2 BbgHG) is also compatible with academic and scientific
freedom. By virtue of their powers to obtain information, exercise
supervision and vote to remove the management body from office, the
collegial bodies have sufficient means by which to prevent decisions
being taken which are inadequate from an academic or scientific point of
view.
2. On an interpretation in conformity with the constitution, the
competence of the management bodies to evaluate teaching and research
and to take the results into account in the allocation of resources (§
65.1 sentence 4 nos. 4 and 5, § 73.3 sentence 1 BbgHG) is likewise
compatible with Article 5.3 sentence 1 GG.
a) Article 5.3 sentence 1 GG contains no prohibition on attaching
consequences to the evaluation of academic quality in the allocation of
resources. The legislature’s decision to gear the allocation of
resources in the higher education sector to performance is
constitutionally unobjectionable if an evaluation of performance which
is adequate from the academic or scientific point of view is
sufficiently guaranteed. When determining the criteria, an appropriate
involvement of the representatives of science and scholarship is
indispensable in order to avoid non scientific or non academic
influence.
b) The evaluation criteria are not specified in detail in the
Brandenburg Higher Education Act. In view of the fact that proven
practices of science and scholarship evaluation are only gradually being
developed, the legislature is not yet constitutionally obliged to
establish such criteria. Within its margin of appreciation and prognosis
it can establish a model in which the development of such criteria is
left to an internal university process. This has occurred through the
provisions in the Brandenburg Higher Education Act. Both the evaluation
of teaching (§ 7 and § 74.1 no. 5 BbgHG) and the evaluation of research
(§ 65.1 sentence 4 no. 4 and § 74.1 no. 5 BbgHG) – which is regulated in
less detail – are conducted by a procedure which satisfies the
requirements of Article 5.3 sentence 1 GG and guarantees the required
involvement of scientific and academic expertise. However, the
legislature is obliged to monitor and, where appropriate, remedy defects
in the provisions on the organisation of evaluation.
c) The provision concerning competence in respect of evaluation oriented
allocation of resources is constitutionally unobjectionable. The
exercise of that competence by management bodies is limited inter alia
by the structural and development planning of the faculties (§ 74.1 no.
2 BbgHG), the higher education development plan (§ 67.1 no.3 BbgHG), the
evaluation results and by the right of the senate to express its view on
the draft budget (§ 67.2 sentence 2 no. 2 BbgHG). A further limitation
arises from Article 5.3 sentence 1 GG and from the guarantee of freedom
of research under ordinary law in § 4.2 BbgHG. The possibility of doing
academic or scientific work must remain for every holder of fundamental
rights, even where resources are allocated on the basis of evaluation
results.
3. The provisions on the staffing of the university management office,
in particular the right of proposal of the Land higher education council
for the election of the university management, are compatible with
Article 5.3 sentence 1 GG.
Since the university management is not only a self governing body, but
is also required to fulfil public tasks, its staffing is a state and
university matter. The state’s responsibility is preserved in particular
by the minister’s appointment of the candidate elected by the senate.
However, in development and organisation of higher education, the
legislature can allow other influences from outside higher education and
therefore also choose forms of organisation which are free of
ministerial involvement and which safeguard more strongly the
independence of scholarship and science from the state.
The legislature has adequately regulated the composition, appointment
and tasks of the Land higher education council in § 63.5 sentence 1 and
§ 63.2 BbgHG. Its tasks are mainly of an advisory and recommendatory
nature. Admittedly, the right of proposal for the election of the
university management goes beyond that. However, that right is
constrained by having to be exercised as part of a collaboration between
the state and the university and is restricted by further procedural
requirements.
4. Finally, the university management’s right of proposal for the
election of the faculty managements is compatible with Article 5.3
sentence 1 GG. The election of the faculty management remains a task of
the faculty council, the majority of the members of which are university
teachers and which also retains the power to vote the management out of
office.
Order of 26 October 2004 – 1 BvR 911/00, 1 BvR 927/00 and 1 BvR 928/00 –
Karlsruhe, 26 November 2004
Note: The Brandenburg Higher Education Act, as published on 6 July 2004,
is available at: www.brandenburg.de/media/1494/Hochschulgesetz.pdf
This press release is also available in the original german version.
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