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Constitutional complaints against the establishment of the Brandenburg Technical University Cottbus-Senftenberg partially successful

Press Release No. 39/2015 of 10 June 2015

Order of 12 May 2015
1 BvR 1501/13, 1 BvR 1682/13

The First Senate of the Federal Constitutional Court has partially granted constitutional complaints lodged against the merger of the Technical University of Cottbus (Technische Universität Cottbus - TU Cottbus) and the Lausitz Technical College (Fachhochschule Lausitz - FH Lausitz) into the Brandenburg Technical University Cottbus-Senftenberg (Brandenburgische Technische Universität Cottbus-Senftenberg – BTU Cottbus-Senftenberg). Temporary management of BTU Cottbus-Senftenberg by a founding commissioner who is appointed by the Ministry of Education and Science violates the freedom of research and teaching as guaranteed by Art. 5 sec. 3 sentence 1 of the Basic Law (Grundgesetz – GG) because the legislature did not itself determine the legal regime of the matter. Otherwise, the constitutional complaints were unsuccessful.

Facts of the Case and Procedural History:

The Land Act to Further Develop the Lausitz University Region of 11 February 2013 (Landesgesetz zur Weiterentwicklung der Hochschulregion Lausitz – GWHL) merged the Brandenburg Technical University Cottbus with the Lausitz Technical College into the Brandenburg Technical University Cottbus-Senftenberg. Inter alia, the act regulates interim management of the university until the appointment of an inaugural president, as well as the composition of new central self-administration bodies. Effective 1 July 2013, the Ministry of the Land appointed a founding commissioner who managed the newly formed university until 15 July 2015, when the inaugural president was appointed. The Inaugural Academic Senate and the extended Inaugural Academic Senate were constituted on 20 November 2013.

The complainants are departments and professors of the former Cottbus University. By order of 27 June 2013, the Third Chamber of the First Senate rejected the departments’ application for a preliminary injunction preventing the entry into force of the act that merged the universities.

Key Considerations of the Senate:

The departments’ constitutional complaint is unfounded while the professors’ constitutional complaint is in parts well-founded.

1. Formally, there are no constitutional concerns regarding the act.

The fundamental right to freedom of research and teaching under Art. 5 sec. 3 sentence 1 GG does not award special participatory rights to universities, departments or individual academics in the legislative process regarding the merger of two universities. The parliamentary legislative procedure, including public debate, gives voice to the concerns of all affected parties, particularly by involving the opposition and by being covered by the media. Protecting the freedom of research and teaching does not require the imposition of further procedural requirements on the legislature. Moreover, the public and the universities had been involved extensively in discussions prior to this merger. The universities were also involved in the law-making process; they had commented on the draft bill and had provided further statements in legislative hearings. Altogether, there are no indications to support the departments’ view that the act came as a surprise.

The claim that no sufficient reasons were given for the challenged act is unfounded. Principally, there are no constitutional requirements as to the reasons why a law was passed, since the constitution addresses results of a legislative procedure.

2. The challenged act does not violate any fundamental rights of the departments. Art. 5 sec. 3 sentence 1 GG does not grant a right of existence to specific academic institutions. To ensure the freedom of research and teaching, the state is only required to provide functioning institutions to enable free academic work, here at universities. Therefore, the legislature was free to decide to merge a university with a technical college. It enjoys discretion to assess and predict the adequacy of such new organisational structures. This discretion is both determined and limited by the right to freedom of research and teaching under Art. 5 sec. 3 sentence 1 GG. However, the Federal Constitutional Court does not review whether the legislature, by making a decision on the organisational structure, has found the most expedient, reasonable or fair solution.

3. Temporary management of University Cottbus-Senftenberg by a founding commissioner who is appointed by the Land Ministry of Education and Science violates Art. 5 sec. 3 sentence 1 GG. Particularly, the Ministry was not authorised to issue an interim university statute that assigns to the commissioner academically relevant powers without specific statutory limitations.

a) Management of an institution of higher education that is installed and shaped by the state stands in stark contrast to the idea of academic self-responsibility and to the ensuing principle of university autonomy. Therefore, it is only in exceptional cases and under strict conditions that the legislature’s discretion in shaping the freedom of research and teaching permits the creation of such management. Unlike the process of founding of a new university, a merger unites existing academic institutions. Here, it is possible to use existing management and self-administration bodies that have been constituted in compliance with the participation requirements of Art. 5 sec. 3 sentence 1 GG, to take the necessary measures implementing the legislature’s decisions on higher education policy. In case of a merger, it is therefore the legislature’s task to protect the participatory rights of academics to the extent possible. For instance, the legislature can set requirements for the election of management for the new organisation, without itself appointing such management in the interim, or the legislature can require the existing bodies to take the necessary steps to implement the legislature’s decision within a set time frame.

The situation may be different if the state can prove that doing so would seriously jeopardise the merger of the universities. If there is no other way to avert a serious disruption of research and teaching and if the tools of state supervision fail, even appointing a state commissioner for an interim period may be justified, by way of exception. However, diverging views on higher education policies and even protest against a decision on higher education policy do not justify arrangements deviating from the principle of university self-government.

b) The longer a management appointed by the state to merge academic organisations operates without a self-government body in place, the less likely it is that this meets the requirements of the Basic Law, if this phase is not limited to the absolute necessary, and if its powers are not limited to reversible decisions in exceptional situations only.

In the case at hand, the participatory rights of the fundamental rights holders were completely suspended for an interim period of five months – from July 2013 until the Inaugural Academic Senate was constituted in November 2013. As a result, academics completely lacked the opportunity to participate in appointing or dismissing the interim management, as well as, by way of institutional design, participate in decision-making. This bears particular weight if these are strategic decisions made during a constitutive phase of re-organisation that are extensive and hardly reversible. There is greater structural danger to academic freedom if, during such a critical phase, a management body is authorised to act without participation of those vested with the right of academic freedom, and that therefore might act against their interests. Even during a period of transition caused by a merger, academics must be given the opportunity to share their professional competence by being represented in university bodies. During the period following the merger from November 2013 until July 2014, there was no such representation at the University Cottbus-Senftenberg. Although the Inaugural Academic Senate was constituted in November and was granted comprehensive rights of information, it had even less rights to participate in decisions of the founding commissioner than it had vis-à-vis the inaugural president who was appointed later.

c) However, whether the appointment of the commissioner by the Land government meets the pertinent constitutional requirements may remain unanswered, since the challenged provision of § 8 sec. 2 sentence 2 GWHL does not meet the requirements of the Basic Law in any event because the legislature did not itself determine the rules that are essential for protecting academic freedom when appointing a commissioner. Academically relevant powers were assigned to the founding commissioner not by law but by a temporary university statute issued by the Land Ministry.

4. However, the composition of the Inaugural Academic Senate and the extended Inaugural Academic Senate, in which professors of the University and the Technical College are equally represented, complies with Art. 5 sec. 3 sentence 1 GG.

Like their colleagues at the University of Cottbus, professors at the Technical College (Fachhochschule) can invoke a fundamental right to freedom of research and teaching. Differences between them and university professors, such as in the number of required teaching hours, are not of such relevance that it would be unreasonable for the legislature to combine both in one group. Neither does the argument of tradition call for a distinction between the categories of university and technical college; the legislature is not bound by traditional concepts. In any event, the legislature took into consideration the differences regarding academic qualification, in that university professors have a decisive influence on decisions that directly affect research.

Also, the fact that professors of the University, being a numeric majority, are represented in the central self-governing bodies by the same number of persons as the professors of the Technical College does not violate the complainants’ right to freedom of research and teaching. In a joint election, it would have been likely that more university professors would have been elected, since they were in the majority.  Right from the start, that would have resulted in dominance of university research and teaching over the application-oriented research and teaching of the Technical College. Since the guarantee of academic freedom in Art. 5 sec. 3 sentence 1 GG applies to both, it is legitimate that the legislature wants to ensure that both are represented equally in the Inaugural Academic Senate and the extended Inaugural Academic Senate.