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Constitutional complaint against the Brandenburg Higher Education Act unsuccessful

Press Release No. 104/2004 of 26 November 2004

Order of 26 October 2004
1 BvR 911/00

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: Brandenburg Higher Education Act, as published on 6 July 2004