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§§ 90 and 91 of the Hamburg Higher Education Act is unconstitutional in part

Press Release No. 113/2010 of 07 December 2010

Order of 20 July 2010
1 BvR 748/06

The complainant is a university professor at the Faculty of Law of Hamburg University. His constitutional complaint is directed against §§ 90 and 91 of the Hamburg Higher Education Act (Hamburgisches Hochschulgesetz - HmbHG), which govern the relation inter se of the university bodies at faculty level. While § 90 HmbHG provides for the legal position and the duties of the dean's office, § 91 defines the position and the duties of the faculty council. Both provisions have been amended several times in the past, each time to the detriment of the faculty council.

The complainant argues that the provisions violate his academic freedom because they deny him collegial and representative rights of participation in decision-making. He further argues that § 90 HmbHG concentrates almost all fundamental competences that are relevant to research and teaching on the deans' office. In contrast, the faculty council is said not to have sufficient decision-making rights, rights of supervision and rights to impose sanctions. The unequal distribution of competences is said to become apparent in particular in the provisions on the appointment procedure for university posts, on the official function of the dean, on the dean's election and on voting the dean out of office.

The First Senate of the Federal Constitutional Court has decided that § 90.1 sentence 3, 90.4 sentences 2 and 3 and 90.5 no. 1 and no. 2, 1st alternative and no. 7, as well as § 91.2 of the Hamburg Higher Education Act of 18 July 2001 (Hamburg Law and Ordinance Gazette - HmbGVBl p. 171), most recently amended by the Act to Improve Access to Higher Education for Persons with a Vocational Qualification and to Improve the System Bachelor and Master of Studies (Gesetz zur Verbesserung des Hochschulzugangs für beruflich Qualifizierte und des Bachelor-Master-Studiensystems) of 6 July 2010, HmbGVBl p. 473) are incompatible with Article 5.3 sentence 1 of the Basic Law (Grundgesetz - GG). In their interaction, these provisions on the appointment and the competences of the dean's office do not meet the requirements made by the freedom of science, research and teaching.

In essence, the decision is based on the following considerations:

To the extent that the constitutional complaint, which is directed against §§ 90 and 91 HmbHG in their entirety, is admissible, it is well-founded in part. The freedom of science, research and teaching, which is provided for in Article 5.3 sentence 1 GG, requires regulating university organisation, and thus the decision-making process on matters of university organisation, in such a way that research and teaching can be pursued in a free and undisturbed manner at a university. The participation of the academics, as holders of fundamental rights, in the organisation of the academic work serves to protect them from decisions that are inadequate with regard to academic standards; their participation is therefore guaranteed by fundamental rights to the extent that their freedom of research and teaching can be endangered by decisions which relate to university organisation. Safeguarding the freedom of science, research and teaching by means of organisational provisions therefore requires that the holders of the freedom can, through their representatives in university bodies, resist dangers to the freedom of science, research and teaching and contribute their professional competence to the university in the interest of the realisation of these freedoms. The legislature must guarantee to the holders of fundamental rights a sufficient level of participation. Not the specific competences which are assigned are relevant to clarify the question of whether a provision creates structures which can have an endangering effect but the entire structure of the university constitution. The structure can be unconstitutional in particular if the management body is assigned substantial competences to decide on human and physical resources in science-related areas, but if in comparison, hardly any competences and no significant rights of participation and supervision remain with the body in which university lecturers are represented. The challenged provisions do not fully comply with these constitutional standards.

1. Competences of the dean's office in the context of which it largely executes legal requirements and resolutions passed by collegial bodies are constitutionally unobjectionable.

It is, for instance, unobjectionable that according to § 90.5 no. 3 HmbHG, the dean's office has the duty to submit to the university Board proposals for the performance-oriented allocation of variable pay to professors, for the proposals have no binding effect. Moreover, this competence is restricted by a differentiated provision with regard to the criteria for awarding the variable pay, its amount and the framework for awarding it.

Furthermore, the competence of the dean's office to decide about teaching duties, which is provided for in § 90.5 no. 4 HmbHG, also does not meet with objections under constitutional law because it is complemented by other provisions of the Hamburg Higher Education Act in such a way that the pursuit of science is secured. The decisions made on the basis of the competence must observe the provisions which are constituent for the university lecturer's administrative status. Apart from this, it is safeguarded that the competence serves above all to organise teaching activities and to coordinate the courses offered and may not be used to impair the freedom of research or teaching.

Finally, if it is interpreted in conformity with the constitution, the competence of the dean's office to decide on the appointment proposals submitted by the appointment committee, which is provided for in § 90.5 no. 2, 2nd alternative HmbHG, does not violate the freedom of science. It is in the hands of the faculty council itself, in which the group of the university lecturers has the absolute majority of seats and votes, to provide in the faculty statutes, which the faculty council adopts, that the appointment committees preparing the appointment proposals are installed by the faculty council and not by the dean's office. The dean's office decides on the appointment proposals without being formally bound by the appointment proposal submitted by the appointment committee. Under an interpretation in conformity with the constitution, it will, however, only in special exceptional cases be allowed to diverge from the proposal of the appointment committee. Moreover, the university Board has to take not only the proposal made by the dean's office, but also the vote of the appointment committee into consideration.

2. In contrast, the competences of the dean's office to manage the budget resources assigned to the faculty by the Board and to decide upon the allocation of posts within the faculty (§ 90.5 no. 1 HmbHG) and to examine, when the post of a professor or junior professor is vacant or becomes vacant, its future use on the basis of the university's structure and development plan (§ 90.5 no. 2, 1st alternative HmbHG), are, in connection with the subsidiary fall-back competence of the dean's office under § 90.5 no. 7 HmbHG, not compatible with the freedom of science, research and teaching.

In these areas, the dean's office is assigned extensive steering competences which are not sufficiently compensated in §§ 90 and 91 HmbHG by rights of participation, influence, information and supervision of the faculty council as the collegial body of representation of the holders of fundamental rights.

The faculty council, for instance, lacks a right to participate in the structure and development planning, which is the basis for the examination of the use of posts. It is not provided by statute that the structure and development plan of the university is developed from within the faculties. Instead, the plan is adopted by the university council, in which the influence of the university lecturers is strongly restricted. According to § 91.2 HmbHG, the individual faculty has no legal possibility to influence the elaboration of the structure and development plan.

The faculty council's possibility to supervise is merely restricted to the "supervision of the dean's office", which is not specified in further detail, and to the right to "give an opinion on all matters regarding the faculty". Under § 91.2 HmbHG, it does not even have a right to be informed by the dean's office, which would make it possible to exercise the right of supervision in a meaningful and effective manner.

The imbalance in the relation between the management body and the collegial body is also not compensated by the possibility of effectively influencing the composition of the dean's office. According to the Hamburg Act of Higher Education, the faculty council has only a restricted right to participate in the election of the dean (§ 90.1 sentence 3 HmbHG). The faculty council merely has to confirm the dean; the dean who has been selected by the Board does not even have to have been a member of the University. The right of confirmation ensures that no one may be appointed dean against the will of the faculty council. The provision, however, meets with reservations if the faculty council's right to vote is a necessary instrument of supervision for this collegial body because for the rest, it has been deprived of almost all essential competences in favour of the management body.

The unconstitutionality of the overall structure of the university organisation established by §§ 90 and 91 HmbHG results at any rate from the faculty council's insufficient rights with regard to voting the dean out of office. The faculty council merely has the right to propose, with a majority of three quarters of its members, to the Board to vote the dean out of office (§ 90.4 sentence 3 HmbHG); the faculty council is not itself competent to decide upon voting the dean out of office (§ 90.4 sentence 2 HmbHG). The Board is not bound by the faculty council's proposal so that it is not possible for the faculty council to part, in a self-determined manner, with a dean who is no longer accepted as a management organ. This is especially serious in the overall structure of the university organisation because according to the Hamburg Higher Education Act, the faculty council also has no other rights to exert an influence, rights of supervision and of veto and rights to be informed, so that the lack of a competence to vote a dean out of office makes a supervision of the dean's office by the faculty council actually impossible.