Order of 25 June 2025

R e a s o n s :

A. 

1

The complainant, a public university in the Land Berlin, directly challenges § 110(6) second and third sentence of the Berlin Higher Education Act (Berliner Hochschulgesetz – BerlHG) in the version of the Act Updating Berlin Higher Education Law (Gesetz zur Fortschreibung des Berliner Hochschulrechts) of 5 July 2022 which went into effect on 17 July 2022 ([...]). The challenged Land law rule requires public universities in the Land Berlin to provide a permanent contract to all postdoctoral researchers with whom the university has a fixed-term employment contract if, at the end of the fixed term, the postdoctoral researcher has achieved the qualifications agreed upon at the time the fixed-term contract was concluded (so-called follow-up commitment). In contrast, pursuant to § 2(1) second sentence of the federal Academic Fixed-Term Contract Act (Wissenschaftszeitvertragsgesetz - WissZeitVG), universities are permitted to enter into fixed-term employment contracts with postdoctoral researchers for a qualification phase of up to six years without a future obligation to enter into a permanent contract.

I.

2

1. § 110(6) of the Berlin Higher Education Act, which is challenged with regard to its second sentence, states as follows:

§ 110 Research associates and artistic associates

[…]

(6) ¹An employment agreement may be made with a research associate for a qualification phase that provides for, after the expiry of a fixed term, a permanent employment relationship (follow-up commitment) if the academic achievements specified by the employment agreement have been fulfilled and the other requirements for employment are met. ²A follow-up commitment that reasonably takes into account the qualification objectives specified in the employment agreement must be included for postdoctoral research associates. ³The second sentence does not apply to personnel

1. whose positions are primarily financed by third-party funding or programmes of the Federation, the Länder or the Land Berlin, insofar as these programmes do not specify otherwise, or

2. pertain to medical training.

⁴The universities shall further specify the details of provisions, including principles for the selection of personnel and on the determination and assessment of the fulfilment of qualification objectives, through bylaws.

3

§ 110(6) second through fourth sentences of the Berlin Higher Education Act replaced the previous rules in § 110(6) second sentence of the Berlin Higher Education Act in the version of the Act to Strengthen Higher Education and Research in Berlin (Gesetz zur Stärkung der Berliner Wissenschaft) of 14 September 2021 ([...]), which went into force on 25 September 2021, by which the obligation to provide a follow-up commitment was introduced for the first time. In the Act Updating Berlin Higher Education Law of 5 July 2022, a transitional rule in § 126f Berlin Higher Education Act was included, according to which § 110(6) second through fourth sentences of the Berlin Higher Education Act would apply to the employment of postdoctoral researchers beginning 1 October 2023 ([...]). This date was subsequently pushed back by the legislator, first to 1 April 2025 by the Sixteenth Act Amending the Berlin Higher Education Act (Sechzehnten Gesetz zur Änderung des Berliner Hochschulgesetzes) of 11 July 2023 ([...]), which went into effect on 22 July 2023, and later to 1 January 2026 by the Second Act Updating Berlin Higher Education Law (Zweiten Gesetz zur Fortschreibung des Berliner Hochschulrechts) of 24 February 2025 ([...]), which went into effect on 8 March 2025.

4

2. Under federal law, fixed-term employment contracts with researchers or artists are governed by the Academic Fixed-Term Contract Act (Wissenschaftszeitvertragsgesetz - WissZeitVG) of 12 April 2007 (Federal Law Gazette, Bundesgesetzblatt – BGBl. p. 506), which was most recently amended by Art. 1 of the Act of 25 May 2020 (BGBl. p. 1073). It includes, inter alia, the following provisions:

§ 1 Fixed-term employment contracts

(1) Employment contracts for a fixed term (fixed-term employment contracts) with research or artistic personnel, excluding university lecturers, at institutions that are state universities according to Land law are subject to §§ 2, 3 and 6. These provisions cannot be derogated by way of agreement. For certain disciplines and areas of research, collective agreements may derogate from the time limits specified in § 2(1) and may specify the number of permissible extensions of fixed-term employment contracts. Within the scope of such a collective agreement, contracting parties not bound by the collective agreement may agree to apply the collectively agreed provisions. Labour law provisions and principles governing fixed-term employment contracts and their termination shall apply insofar as they do not conflict with the provisions of §§ 2 to 6.

(2) The right of universities to enter into permanent employment contracts or fixed-term contracts in accordance with the Act on Part-Time Work and Fixed-Term Contracts (Teilzeit- und Befristungsgesetz – TzBfG) with personnel identified in subsection 1 first sentence remains unaffected.

§ 2 Duration of fixed-term contracts; fixed-term contracts due to third-party funding

(1) Fixed-term employment contracts with personnel identified in § 1(1) first sentence who have not been conferred a doctoral degree are permissible for up to a period of six years if the employment is intended for the promotion of that individual’s academic or artistic qualifications. Following the conferral of a doctoral degree, a fixed term of up to six years, or nine years in the area of medicine, is permissible if the employment is intended for the promotion of that individual’s academic or artistic qualifications; the permissible fixed term shall be extended to the extent that periods of fixed-term employment pursuant to the first sentence and periods of doctoral study without employment pursuant to the first sentence collectively amount to less than six years. The duration of the agreed-upon fixed term is to be determined on the basis of what is reasonable for the intended qualifications. If the individual cares for a child or children under the age of 18, the permissible fixed-term pursuant to the first and second sentences shall increase by two years for each child. The fourth sentence shall also apply in regard to any child as to which the requirements of § 15(1) of Federal Parental Allowance and Parental Leave Act are satisfied. The permissible fixed term pursuant to the first and second sentences shall increase by two years in the case of disability within the meaning of § 2(1) of the Ninth Book of the Social Code or a severe chronic illness. Extensions of fixed-term employment contracts are also permissible up to the applicable permissible duration for fixed-term employment contracts.

[…]

II.

5

1. The complainant asserts a violation of its academic freedom protected by Art. 5(3) first sentence of the Basic Law.

6

[…]

7

2. The German Bundestag, the Bundesrat, the Federal Government, the Berlin House of Representatives and the Land government of Berlin were given the opportunity to submit statements. They did not make use of this possibility.

B. 

I. 

8-9

[…]

II. 

10

The constitutional complaint is admissible. In particular, there is standing to assert a possible violation of rights and the principle of subsidiarity has been satisfied.

11-18

[…]

C. 

19

The constitutional complaint is well-founded. § 110(6) second sentence of the Berlin Higher Education Act interferes with the complainant’s fundamental right of academic freedom pursuant to Art. 5(3) first sentence of the Basic Law (see I. below). This interference is not justified because the provision is formally unconstitutional, as the Land Berlin does not have legislative competence in this area (see II. below).

I. 

20

The obligation of universities to agree to provide a future permanent employment contract to all postdoctoral researchers they employ for a qualification phase as required by § 110(6) second sentence of the Berlin Higher Education Act interferes with the fundamental right of academic freedom.

21

1. The fundamental right of academic freedom guaranteed by Art. 5(3) first sentence of the Basic Law is a defensive right against state interference in academia (cf. BVerfGE 15, 256 <263 f.>; 35, 79 <112>; 95, 193 <209>; 128, 1 <40>). Academic freedom includes the freedom of research that serves to advance the independent acquisition of scientific knowledge (cf. BVerfGE 61, 210 <244>), as well as the freedom of research-based teaching as a process of scientifically sound communication of knowledge obtained through research (cf. BVerfGE 35, 79 <113>; 141, 143 <164 para. 49>). Accordingly, universities and their constituent parts, as well as university lecturers, can challenge state measures which impair their freedom in matters affecting research and teaching (cf. BVerfGE 35, 79 <116 f., 120 ff.>; 141, 143 <164 f. para. 48 f.>). In this respect, personnel decisions relating to professorships responsible for the process of academic research and teaching and their research associates (cf. BVerfGE 35, 79 <123>; 61, 260 <279>; cf. also Berlin Constitutional Court, Verfassungsgerichtshof Berlin, Order of 25 January 2001 - 89/00 -, para. 15), as well as the universities’ mandate to promote the development of new academics (cf. BVerfGE 94, 268 <286>) are ‘academically relevant’.

22

2. Based on this, a statutory obligation to agree to provide a future permanent contract with all postdoctoral researchers employed for a qualification phase interferes with academic freedom. The obligation deprives universities of the possibility to make their own determination as to whether to continue to employ a postdoctoral researcher after successful completion of the qualification phase. Instead, they must permanently employ all researchers who want to have such an arrangement. This directly curtails the freedom of universities in the selection of their research associates to detrimental effect, such as with regard to the development of new academics, which requires the possibility of fixed-term employment contracts during a qualification phase (cf. BVerfGE 94, 268 <286>).

II. 

23

The interference with the complainant’s fundamental right of academic freedom is not constitutionally justified. § 110(6) second sentence of the Berlin Higher Education Act is formally unconstitutional. The statutory obligation of universities pursuant to § 110(6) second sentence of the Berlin Higher Education Act to offer a future permanent contract to all postdoctoral researchers after the successful conclusion of a qualification phase is not within the legislative competence of the Land.

24

The challenged provision falls within the scope of legislative competence under Art. 74(1) no. 12 of the Basic Law in the area of ‘labour law’, which is a concurrent legislative power (see 1. below). The Land Berlin cannot assert its legislative competence in accordance with Art. 72(1) of the Basic Law because the federal legislator has, with § 2(1) second sentence of the Academic Fixed-Term Contract Act, exercised its legislative competence in labour law and enacted definitive provisions on the duration and termination of employment relationships of postdoctoral researchers employed for a qualification phase (see 2. below).

25

1. The obligation of universities to agree to a future permanent employment contract pursuant to § 110(6) second sentence of the Berlin Higher Education Act falls within the competence of ‘labour law’ under Art. 74(1) no. 12 of the Basic Law.

26

a) aa) Pursuant to Art. 70(1) of the Basic Law, the Länder have legislative competence insofar as the Basic Law has not allocated the power to enact legislation to the Federation. In accordance with Art. 70(2) of the Basic Law, such an allocation of legislative competence to the federal government is set out first and foremost in the provisions concerning the exclusive (Art. 73 and Art. 105(1) of the Basic Law) and the concurrent (Art. 74 and Art. 105(2) of the Basic Law) legislative competences. The Basic Law contains – with the exception of Art. 109(4) – a comprehensive allocation of legislative competence to either the Federation or the Länder. Shared legislative competence for the same subject matter are alien to the provisions concerning allocation and would be incompatible with these provisions’ function in establishing demarcation. Through the list of competences contained in Art. 73 and Art. 74, the Basic Law fully separates the legislative competences of the Federation from those of the Länder. If a law concerns multiple subject matters, with some belonging to the legislative competence of the Federation and others to the legislative competence of the Länder, then it is necessary to classify the law according to one area of competence or the other (cf. BVerfGE 157, 223 <254 para. 81> - Berlin rent cap; 163, 1 <13 f. para. 22> - Wind turbines in woodland areas). According to the constitutional system of competences, the area of competence of the Länder is generally determined through the exclusion of competences explicitly bestowed on the Federation (cf. BVerfGE 157, 223 <254 para. 82>).

27

The necessary first step of interpreting the competence clauses in the Basic Law must occur on the basis of the general rules of constitutional interpretation, according to which interpretation relies mainly on the wording, systematic approach, spirit and purpose, and legislative history of the constitutional provision in question (cf. BVerfGE 163, 1 <14 para. 24>). In this regard, state practice and the development of the relevant subject matter of the competence have particular significance. The legislative history is less relevant when the subject matter of the competence concerns factual circumstances, but has greater weight when the subject matter of the legislation normatively addresses an existing area of law. In the latter case, the traditional and conventional understanding of that area of law takes on greater significance (cf. BVerfGE 3, 407 <414 f.>; 61, 149 <175>; 97, 198 <219>; 106, 62 <105>; 109, 190 <213>; 134, 33 <55 para. 55>). If an area of law listed in Art. 74(1) of the Basic Law has a connection with an area of law recognised in the Weimar Constitution and has developed into a unified and discrete area with recognisable boundaries, then that competence is generally to be understood in the same sense as it was under the Weimar Constitution (cf. BVerfGE 26, 281 <299>; 33, 52 <61>; 42, 20 <29>; 61, 149 <175 f.>; 109, 190 <218>; 145, 20 <62 para. 105>; 157, 223 <265 para. 110>; 163, 1 <17 f. para. 31 f.>).

28

bb) The second step of assigning a law to a constitutionally identified area of competence as determined through interpretation is carried out by examining the direct subject matter of the legislation, its statutory purpose, its effects, the entities to which it is addressed and constitutional traditions. First and foremost, the relevant area of competence is determined by the objective subject matter of the law to be examined. In this respect, it is the substantive content of a provision, rather than the designation chosen by the legislator, that is determinative. The effects of a law are determined by its legal consequences. Objective intent is to be determined by recognised methods of legal interpretation, i.e. based on the wording, the systematic approach and the spirit and purpose of the law, as well as through the legislative materials and legislative history (cf. BVerfGE 161, 63 <92 f. para. 56 f.> with further references – Wind Farm Participatory Companies; established case-law). This will depend upon the objective intent of the legislator as expressed in the law, which must be determined using the recognised methods of statutory interpretation. Subjective descriptions of the law from the entities involved in the legislative process or their individual members are not decisive. Generally, the legislative history is only relevant insofar as it confirms the correctness of an interpretation determined in accordance with general principles or resolves uncertainties that could not otherwise be resolved (cf. BVerfGE 144, 20 <212 f. para. 555> with further references; 157, 223 <262 ff. para. 104 ff.>; 161, 63 <92 f. para. 56 f.>; 163, 1 <14 f. para. 25>; established case law). Individual provisions within the law that are so closely ‘interlinked’ with the overall focus of the law that they appear to be a part of the same framework belong to the same area of competence as the law generally. Conversely, individual provisions that have their own regulatory content and are not closely interlinked with the overall legislative concept should be classified independently in terms of the applicable legislative competence (cf. BVerfGE 137, 108 <161 para. 123>; 161, 63 <93 para. 58>; 163, 1 <15 para. 26>; established case-law).

29

b) Based on the above, § 110(6) second sentence of the Berlin Higher Education Act falls within the legislative competence for ‘labour law’ under Art. 74(1) no. 12 of the Basic Law. This area encompasses a wide-ranging power to enact legislation on the legal relationships between employers and employees (see aa)(1) below); it also extends to the legal relationships with public employees, at least in terms of the duration and termination of the employment relationship (see aa)(2) below). The challenged obligation to agree to a permanent employment contract must be classified as belonging to Art. 74(1) no. 12 of the Basic Law. The subject matter, legal effect and objective of the rule are designed to establish rules for the duration of the employment relationship between the respective university and the postdoctoral researchers they employ for a qualification phase (see bb) below).

30

aa) (1) The area of ‘labour law’ listed in Art. 74(1) no. 12 of the Basic Law as a concurrent legislative power shares a connection with the provision of the same name in Art. 7 no. 9 of the Weimar Constitution and thus also to the understanding developed through the ordinary law with regard to its content as to its scope (cf. BVerfGE 7, 342 <351>). The requirements for an equivalent interpretation of the scope determined for Art. 7 no. 9 of the Weimar Constitution in relation to Art. 74(1) no. 12 of the Basic Law (cf. BVerfGE 109, 190 <218>; 145, 20 <62 para. 105>; 157, 223 <264 f. para. 110>; 163, 1 <17 f. para. 31 f.>) are met because, under the Weimar Constitution, labour law developed into a unified and discrete area of the law regarding the rights of employees. The introduction of the employment law contract into the Civil Code separated labour law from the general law of obligations steadily re-shaped the concept of employment into a relationship based on personal rights, with the specific rules governing the relationship increasingly determined by collective agreements. In hiring, transferring and dismissing employees, employers were bound by the consent of the works council. A number of new legal provisions on the employment relationship, including in the area of public law, were enacted, an Imperial Labour Court was created and universities developed professorships in labour law (cf. in more detail BVerfGE 7, 342 <349 ff.>). The competence provision in Art. 7 no. 9 of the Weimar Constitution was also broadly understood as such because it was intended to provide the legal basis for the Reich to fulfil its mandate under Art. 157 second sentence of the Weimar Constitution to establish a uniform labour code ([...]). According to the understanding of the time, this competence extended to labour relations law, employment law, the jurisdiction of the labour courts, labour arbitration and rules regarding working hours ([...]).

31

Art. 74(1) no. 12 of the Basic Law is linked with the broad scope of legislative competence, as expressed in the ordinary law understanding of the time, in Art. 7 no. 9 of the Weimar Constitution ([...]). Consequently, Art. 74(1) no. 12 establishes a wide-ranging legislative competence for legal relationships between employer and employee, which extends to both private law and public law provisions on employment relationships (cf. BVerfGE 77, 308 <329>; 106, 62 <132 f.>; 149, 126 <140 para. 36>). This includes, inter alia, the design of employment law, such as rules on the possibility of fixed-term employment contracts (cf. BVerfGE 7, 342 <349 f.>; 106, 62 <132 f.>; 149, 126 <140 para. 36> on fixed-term contracts not based on objective reasons).

32

(2) (a) The legislative competence pursuant to Art. 74(1) no. 12 of the Basic Law must nevertheless be distinguished from other legislative competences of the Federation and the Länder for legal relationships with public employees. On the basis of Art. 73(1) no. 8 of the Basic Law, the Federation possesses exclusive legislative competence with regard to the civil servants and public employees in its service. Since the repeal of the legislative competence of the Federation under the former Art. 75(1) first sentence of the Basic Law for framework legislation regarding legal relationships of persons in the civil service of the Länder, municipalities and other legal entities under public law, which applied to both civil servants and public employees (cf. BVerfGE 4, 219 <238 f.>; 7, 120 <127> und 11, 89 <98> […]), the Länder – with the exception of the rights and obligations of civil servants and judges with regard to their status (Art. 74(1) no. 27 of the Basic Law) – possess legislative competence in this area pursuant to Art. 70 of the Basic Law. Accordingly, federal law that relates to this area can be replaced by Land law pursuant to Art. 125a(1) second sentence of the Basic Law.

33

(b) The Federal Constitutional Court has thus far only decided a few specific cases on the extent to which public service law must be distinguished from labour law within the meaning of Art. 74(1) no. 12 of the Basic Law (cf. BVerfGE 4, 219 <239>: law governing benefits unique to the public service; cf. BVerfGE 7, 120 <127>: works constitution law as public service law). An exhaustive determination is also not necessary in the present case. In a prior case involving the application of an employment protection rule that only applied to public employees, the Federal Constitutional Court held that the federal legislator could assert its legislative competence for labour law under Art. 74(1) no. 12 of the Basic Law (cf. BVerfGE 51, 43 <55 f.>; cf. also Federal Constitutional Court, Order of the Second Chamber of the First Senate of 15 November 2018 - 1 BvR 1572/17 -, para. 11 ff.; […]). Pursuant to this decision, the challenged obligation of universities to provide permanent positions for all postdoctoral researchers on fixed-term contracts who successfully achieve the qualification criteria is also subject to labour law within the meaning of Art. 74(1) no. 12 of the Basic Law. Like the provisions on employment protection, this falls under the rules affecting the duration and termination of the employment relationship, which are collectively referenced in the case-law of labour courts under the umbrella of ‘general protection of employment relationships’ ([...]).

34

bb) Based on this understanding of the allocation of competence in Art. 74(1) no. 12 of the Basic Law, § 110(6) second sentence of the Berlin Higher Education Act must be considered ‘labour law’.

35

According to its direct subject matter, this rule creates, for postdoctoral researchers who are employed for a fixed-term (§ 110(1) Berlin Higher Education Act) for a qualification phase, a claim against the university as employer (§ 2(4) Berlin Higher Education Act) to permanent employment upon the successful completion of the qualification phase. Creating a statutory link between entering into a fixed-term employment relationship to a claim for permanent employment following the end of the fixed-term if certain prerequisites are achieved constitutes a specification as to the duration and termination of the employment relationship and thus labour law within the meaning of Art. 74(1) no. 12 of the Basic Law. The same applies in regard to the direct legal consequences of the rule in creating a claim for permanent employment for postdoctoral researchers after the successful completion of the qualification phase.

36

The objective aim of the rule also does not negate an assignment to labour law. According to the legislative materials, the rule is intended to establish a new quality assured path to permanent employment in the postdoctoral phrase in order to be able to compete for qualified applicants on the same level as international academic institutions ([...]). The establishment of such a tenure track process with quality assurance, which involves the creation of a new category of personnel, would in fact fall not under labour law but rather higher education law (cf. BVerfGE 111, 226 <258>), for which the Länder have legislative competence under Art. 70 of the Basic Law. However, a possible subjective intention of the organs involved in the legislative process that § 110(6) second sentence of the Berlin Higher Education Act should be created as higher education law is not reflected in either the wording of the provision or its systematic position, and thus does not correspond to the provision’s objective intent, which is decisive (see para. 28 above). § 110(6) second sentence of the Berlin Higher Education Act references existing personnel categories and– unlike in the tenure track process for appointment as a junior professor pursuant to § 102c of the Berlin Higher Education Act or previous assessments of postdoctoral researchers – does not make the offer of a permanent position dependent on an assessment under a formalised procedure as to whether and with what result the performance criteria, specified at the time of initial employment and corresponding to the requirements of the specific permanent position envisaged, were met. Instead, the qualification objectives specified in the employment contract are merely to be reasonably considered in the offer of a permanent position (§ 110(6) second sentence Berlin Higher Education Act).

37

2. In enacting § 2(1) second sentence of the Academic Fixed-Term Contract Act, the federal legislator exercised its legislative competence for labour law pursuant to Art. 74(1) no. 12 of the Basic Law and enacted definitive rules on the duration and termination of employment relationships of postdoctoral researchers hired by universities, so that Land law regulation of this area, as it occurred through the creation of § 110(6) second sentence of the Berlin Higher Education Act, is prohibited by the preclusive effect of Art. 74(1) no. 12 of the Basic Law.

38

a) Pursuant to Art. 72(1) GG, if the Federation makes use of its concurrent legislative powers, the Länder lose their power to legislate so long as and to the extent that the Federation permissibly exercises its legislative powers (so-called preclusive effect). Within the scope of the preclusive effect, the Länder lose their competence to legislate. The preclusive effect both precludes the Länder from adopting new laws going forward, and retrospectively eliminates the basis of competence on which previous Land laws were adopted, such that they are (or become) void. The preclusive effect under Art. 72(1) of the Basic Law applies only where federal and Land or Länder legislation concern the same issue. One notable indication that a Land law provision concerns an area in which the Federation has already exercised its competence is that the execution of such Land law results in federal law no longer being – or at least not completely – applied, or applied in a different manner and its legislative purpose can only be achieved in a modified form (cf. BVerfGE 102, 99 <115>; 157, 223 <255 f. para. 87 f.>; 161, 63 <103 para. 82>).

39

The exercise of a legislative competence resulting in a preclusive effect on Land law is present when a federal law provides definitive rules on a specific issue. This can be done either positively by directly addressing the matter in legislation, or negatively by deliberately refraining from regulating a particular matter. A presumption of a deliberate decision not to regulate, and therefore an exclusive federal law, exists to the extent that a specific issue was debated by the legislator during the legislative process, but not ultimately included in the enacted legislation (cf. BVerfGE 98, 265 <313 ff.>). The deciding factor is whether, in an overall assessment of the relevant area of law, a specific area is actually regulated comprehensively and without gaps or is intended to be finally regulated according to the objective intent of the legislator. In making this determination, it is not only the wording of the federal law that must be considered, but also its underlying legislative purpose, the legislative history and legislative materials (cf. BVerfGE 157, 223 <257 para. 92> with further references). If the federal law merely constitutes a minimum standard in a particular area, then the Land legislator is permitted to enact more stringent rules. The exercise of legislative competence by the Federation must be ‘sufficiently recognisable’. Mere values and objectives expressed by the Federation do not have a preclusive effect. If the federal legislation establishes an exclusive rule, then the preclusive effect of Art. 72(1) applies regardless of whether the Land law contradicts the federal law provisions, supplements them or merely repeats them (declaratory provisions) (cf. BVerfGE 98, 265 <313 ff.>; 138, 261 <280 para. 43 f.>; 157, 223 <256 ff. para. 89 ff.>; 163, 1 <15 f. para. 27>).

40

b) Based on the above standard, the federal law rule in § 2(1) second sentence of the Academic Fixed-Term Contract Act results in a preclusive effect pursuant to Art. 74(1) no. 12 in conjunction with Art. 72(1) of the Basic Law with regard to the challenged Land law rule in § 110(6) first sentence of the Berlin Higher Education Act.

41

aa) The federal law concerns the same area of the law as the Land law (see para. 38 above).

42

§ 2(1) second sentence of the Academic Fixed-Term Contract Act, like § 110(6) second sentence of the Berlin Higher Education Act, does not alter the structure of research personnel under higher education law, but rather sets rules, in the manner of a labour law provision regarding the duration and termination of employment relationships, within the existing personnel structure providing for a fixed-term employment of postdoctoral researchers with the goal of qualification ([...]). This provision is a response by the federal legislator to a change in higher education law regarding the status of research associates that began in the 1970s and saw a shift away from temporary civil service towards salaried employment. This change in status led to the applicability of general labour law provisions on protection against termination, which resulted in decreased fluctuation among research associates in the qualification phase (cf. BVerfGE 94, 268 <286>; […]). The possibility provided by federal law to enter into fixed-term employment contracts in deviation from general labour law rules (cf. § 23 Act on Part-Time Work and Fixed-Term Contracts, § 1(1) fifth sentence Academic Fixed-Term Contract Act) is intended to allow universities to fulfil their function of promoting the development of new researchers even in awarding salaried positions to researchers for a qualification phase (cf. BVerfGE 94, 268 <286 f.>; […]).

43

The identity of the subject matter is made particularly clear by the fact that the legislative objective of § 2(1) second sentence of the Academic Fixed-Term Contract Act largely cannot be achieved to the extent that § 110(6) second sentence of the Berlin Higher Education Act is applied ([...]). § 110(6) second sentence of the Berlin Higher Education Act technically does not eliminate the possibility provided for in § 2(1) second sentence of the Academic Fixed-Term Contract Act of an employment contract for a specified fixed term for postdoctoral researchers that allows for a qualification phase. However, entering into a fixed-term employment contract triggers an obligation under § 110(6) second sentence of the Berlin Higher Education Act to provide a permanent contract following the completion of the qualification phase. This means that the fixed-term employment contract permitted under federal law no longer has the effect that the university can refrain from further employment even in the case of successful completion of the qualification phase. Instead, the possibility of the fixed-term employment contract, which is made possible by the federal law, is reversed by the research assistant's entitlement to a permanent employment contract after a successful qualification phase. Due to the application of § 110(6) second sentence of the Berlin Higher Education Act, the fixed-term employment contract permitted by § 2(1) second sentence of the Academic Fixed-Term Contract Act results in all cases of a successful qualification phase in a new – and permanent – employment contract.

44

bb) An overall assessment of the provisions of the Academic Fixed-Term Contract Act with regard to the duration and termination of employment contracts for postdoctoral researchers shows that the federal legislator has comprehensively regulated the duration and termination of employment relationships for postdoctoral researchers employed by universities for a qualification phase.

45

(1) The wording and systematic approach of the federal rules on fixed-term employment contracts indicate a conclusive use of the legislative competence under Art. 74(1) no. 12 of the Basic Law in this area.

46

With § 2(1) second sentence of the Academic Fixed-Term Contract Act, the federal legislator established the possibility of fixed-term employment contracts for postdoctoral researchers employed for a qualification phase in deviation from the general labour law provisions of the Act on Part-Time Work and Fixed-Term Contracts (§ 14(1) and (2), § 23). It has created a comprehensive and detailed structure for this independent, general possibility for fixed-term employment contracts based on the objective reason of allowing for a qualification phase, taking into account its duty under Art. 5(3) first sentence of the Basic Law to facilitate and promote the cultivation of academic freedom and its transmission to the next generation (cf. BVerfGE 94, 268 <285>) and the interest of research associates in continued employment ([…]). The scope of application for the possibility of fixed-term employment contracts was prescribed in a precise manner. Included within this scope are ‘research personnel’ who have been awarded a doctoral degree and are employed for a qualification phase, with the exception of university lecturers (§ 1(1) first sentence Academic Fixed-Contract Act). In determining the permissible duration for the fixed-term contracts, a differentiation was made between the field of medicine and other academic fields (§ 2(1) first sentence Academic Fixed-Contract Act). In addition to provisions on the impact of other fixed-term employment or civil service on the permissible duration of fixed-term employment (§ 2(3) Academic Fixed-Contract Act), the Act also includes specific rules on extensions of the contractually agreed fixed term for periods of interruption in employment in various circumstances, such as caring for a child, disability, sabbaticals for specific tasks or inability to work due to illness, and the exclusion of such periods of interruption in calculating the maximum permissible fixed term (§ 2(1) fourth through sixth sentences Academic Fixed-Contract Act). The agreed fixed term is to be determined on the basis of what is reasonably necessary for the desired qualification, in order to prevent excessively short fixed-terms ([...]).

47

The possibility of fixed-term employment contracts, which has been designed specifically for academic personnel in a comprehensive manner, should apply without limitation according to the objective legislative intent. The application of contradictory labour law provisions is thus precluded by § 1(1) fifth sentence of the Academic Fixed-Contract Act. Collective agreement provisions that deviate from this are only permitted under certain conditions (§ 1(1) third and fourth sentences Academic Fixed-Contract Act). The right to enter into an employment contract that is more favourable to research associates (either a permanent contract or a fixed-term contract according to the standard in the Act on Part-Time Work and Fixed-Term Contracts) is explicitly bestowed only on the universities, on the basis of their status as employers, and not on the Land legislator (§ 1(2) Academic Fixed-Term Contract Act).

48

(2) This finding is confirmed by the legislative purpose, which can be derived from the legislative history and materials.

49

The possibility of employing research associates for a fixed-term qualification phase, in deviation from general labour law provisions, was created in the context that these personnel would largely no longer be employed as civil servants with life tenure (para. 42). In this way, the federal legislator wanted to fulfil its obligation under Art. 5(3) first sentence of the Basic Law to ensure the appropriate development of new academics ([...]) through the establishment of labour law provisions. This required the general possibility of employing research associates for a qualification phase as created in § 2(1) second sentence of the Academic Fixed-Term Contract Act, as a continuous development of new academics in employment relationships can only be ensured if the limited positions at this level regularly open up (cf. BVerfGE 94, 268 <286>). Accordingly, federal law precludes all Land law provisions which – like § 110(6) second sentence of the Berlin Higher Education Act – make it more difficult to promote the development of young academics, in this case by establishing a right to a permanent employment contract after successful completion of the qualification phase, which reduces the number of open qualification phase positions.

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(3) Finally, a preclusive effect on the part of § 2(1) second sentence of the Academic Fixed-Term Contract Act in regard to § 110(6) second sentence of the Berlin Higher Education Act is also to be assumed because the legislative materials indicate that the federal legislator deliberately refrained from enacting rules that – similar to the challenged Land law provision in this case – would allow for the continued employment of postdoctoral researchers after successful completion of the qualification phase (cf. BVerfGE 98, 265 <313 ff.>; 161, 63 <103 para. 82, 106 f. para. 92 f.>).

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In the context of the debate on updates to the Academic Fixed-Term Contract Act in the 18th legislative period of the German Bundestag, the parliamentary group of DIE LINKE submitted a motion for a resolution on the following proposition ([...]),

‘to establish provisions in the Academic Fixed-Term Contract Act that a fixed-term employment contract for a qualification phase is only permissible if the contract with the employee contains an agreement that the fixed-term will become permanent upon achievement of the qualification objectives (tenure track)’.

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This motion for a resolution was denied by the German Bundestag on the recommendation of the Committee for Education, Research and Technology Impact Assessment ([...]). The Federal Minister for Education and Research rejected the creation of a kind of retention guarantee through the linking of the fixed term to a tenure track, which she viewed the resolution to be proposing, in the first reading of the bill to update the Academic Fixed-Term Contract Act. In her view, the opportunity for academic qualification must also be kept open for future generations ([...]).

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In addition, the parliamentary group of DIE LINKE also proposed, in an application to amend the bill for the First Act to Amend the Academic Fixed-Contract Act ([...]), the following resolution for the Committee for Education, Research and Technology Impact Assessment ([...]):

‘Following the conferral of a doctoral degree, a fixed-term of up to six years, or nine years in the area of medicine, is permissible if the employment agreement with the personnel identified in § 1(1) first sentence provides that the fixed term will become permanent if the qualification objectives have been achieved, as to be determined by an expert assessment of professional, pedagogical and personal suitability in a timely manner.’

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The Committee denied the application ([...]). The parliamentary group of the CDU / CSU justified this denial by stating that the proposed automatic transition to permanent employment would lead to a shortage in the number of available positions in the postdoctoral phase in the medium term. Consistent with the recommendation of the Committee, the Bundestag enacted the update to the Academic Fixed-Term Contract Act without the rule proposed by the parliamentary group of DIE LINKE ([...]).

D. 

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Given the incompatibility of § 110(6) first sentence of the Berlin Higher Education Act Fixed-Term Contract Act with Art. 5(3) first sentence and Art. 74(1) no. 12 in conjunction with Art. 72(1) of the Basic Law, the provision is declared void. There are no grounds for a deviation from a declaration of voidness pursuant to § 95(3) first sentence in conjunction with § 78 first sentence of the Federal Constitutional Court Act (cf. BVerfGE 155, 310 <133 para. 103> – Municipal Education Package). The declaration of voidness also extends to § 110(6) third sentence of the Berlin Higher Education Act, as there is no remaining independent scope of application for this provision, which is ancillary to § 110(6) second sentence of the Berlin Higher Education Act (cf. BVerfGE 155, 119 <235 para. 266> – Subscriber data II).

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