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Essential decisions concerning the accreditation of study programmes must be taken by the legislature itself

Press Release No. 15/2016 of 18 March 2016

Order of 17 February 2016
1 BvL 8/10

The provisions concerning the accreditation of study programmes in the Land North Rhine-Westphalia requiring that study programmes be accredited by agencies “in accordance with applicable regulations” are incompatible with the Basic Law (Art. 5 sec. 3 sentence 1 of the Basic Law (Grundgesetz – GG) in conjunction with Art. 20 sec. 3 GG). Such was the decision of the First Senate of the Federal Constitutional Court in an order published today in specific judicial review proceedings requested by the Arnsberg Administrative Court (Verwaltungsgericht Arnsberg). Principally, the fundamental right of freedom of research and teaching does not conflict with requirements set up to assure the quality of academic studies offered by universities. However, the legislature may not leave essential decisions on the accreditation of study programmes to other actors. The Land legislature must set up regulations in conformity with the Constitution which take effect on 1 January 2018 at the latest.

Facts of the Case and Procedural History:

1. Accreditation in the field of higher education is a procedure applied across the Laender and higher education institutions to evaluate Bachelors’ and Masters’ programmes of state or state-recognised higher education institutions. The request for judicial review concerns the accreditation of study programmes offered by higher education institutions that are not under the responsibility of the Land, i.e. the so-called “programme accreditation”. The process starts with the selection of an agency by the higher education institution, its application for accreditation, and an agreement on the procedure and costs; after that, the higher education institution submits a comprehensive self-documentation. The agency organises a group for the evaluation, which prepares an expert opinion after an on-site visit. Based on this, the agency’s decision-making body adopts a decision.

2. Generally, the programme accreditation is subject to various requirements. In 1998, the German Rectors’ Conference (Hochschulrektorenkonferenz – HRK) advocated the accreditation of study programmes across the Laender. Shortly afterwards, the Standing Conference of Ministers of Education and Cultural Affairs for the Laender (Kultusministerkonferenz – KMK) decided to introduce such procedures on a trial basis for Bachelors’ and Masters’ programmes that were to be newly established and to set up an accreditation council for this purpose. In 2004, the KMK agreed to transform the accreditation council into a public law foundation with legal capacity under the law of the Land North Rhine-Westphalia. By Act of 15 February 2005, the Land North Rhine-Westphalia then established the “Foundation for the Accreditation of Study Programmes in Germany”. As the central organ of the foundation, the accreditation council issues the essential rules for the accreditation of study programmes. The Act does not specify details in that respect. The council also accredits or re-accredits the accreditation agencies, which in turn develop their own accreditation requirements.

3. At the time of the initial court proceedings, the Act on the Higher Education Institutions of the Land of North Rhine-Westphalia (Gesetz über die Hochschulen des Landes Nordrhein-Westfalen - HG NRW) in the version of the Higher Education Autonomy Act (Hochschulfreiheitsgesetz) of 31 October 2006 (HG NRW former version – f.v.) was in force. Higher education institutions that were not under the responsibility of the Land required state recognition (§ 72 HG NRW f.v.) in order to be put on an equal footing with state higher education institutions in terms of graduation, the right to hold examinations and the right to award an academic degree (§ 73 sec. 1 and sec. 2 HG NRW f.v.). Without state recognition, these institutions were not allowed to operate under the designation higher education institution (§ 75 sec. 1 HG NRW f.v.) Pursuant to § 72 sec. 1 no. 3 HG NRW (f.v.) a prerequisite for state recognition was “a majority of … successfully accredited study programmes”. According to § 72 sec. 2 sentence 6 HG NRW (f.v.) accreditations were carried out “in accordance with applicable regulations“.

On 1 October 2014, a new Act on Higher Education Institutions in the Land of North Rhine-Westphalia entered into force. According to the new Act, accreditation of study programmes is now required uniformly for all higher education institutions pursuant to § 7 sec. 1 HG NRW (current version – c.v.), which § 73 sec. 4 HG NRW (c.v.) specifically refers to regarding the accreditation of non-state higher education institutions. Pursuant to § 7 sec. 1 HG NRW (c.v.) accreditation must, as in the past, be carried out “in accordance with applicable regulations”.

Key Considerations of the Senate:

1. The request for judicial is admissible. The provision still has legal effects that are relevant for the proceedings pending before the regular court.

2. The request is well-founded. The provision governing the accreditation of study programmes at higher education institutions stipulated in § 72 sec. 2 sentence 6 in conjunction with § 72 sec. 1 no. 3 HG NRW (f.v.) is incompatible with the requirements of the Basic Law. The accreditation involves significant interference with the freedom of research and teaching, which the legislature may not leave to other actors. In order to meet the requirement of a statutory provision, the legislature must determine the necessary requirements itself.

a) The fundamental right of freedom of research and teaching also guarantees private higher education institutions a freedom that protects academics from any interference by the state with the process of obtaining and imparting academic knowledge. This includes in particular the independent determination of the content, organisation and methodical approach of study courses as well as the right to express academic doctrines. This independence is limited because the requirement to obtain state recognition under § 72 sec. 2 sentence 6 in conjunction with § 72 sec. 1 no. 3 HG NRW (f.v.) forces private higher education institutions to accredit study programmes if they want to be recognised by the state. Such recognition is indispensable if the institution wants to operate as a higher education institution. It constitutes preventive monitoring of the entire course programmes, which must be regularly renewed due to the time limitation so far only determined by the accreditation council. In addition, the agencies establish requirements concerning the contents of curricula, concerning study and examination rules and make recommendations with regard to the designation of major fields of study and modules. As such, the accreditation directly affects the structure and content of academic teaching.
b) This interference with the freedom of research and teaching cannot be justified under constitutional law.

aa) The Europeanisation of the higher education area initiated by the “Bologna Process” can in itself not justify such interferences with the freedom of research and teaching. The “Bologna Declaration” on the European Higher Education Area is a measure of cooperation to pursue European objectives in the education sector. Pursuant to Art. 165 sec. 1 TFEU, such cooperation is subject to the full respect of the responsibility of the Member States for the content of teaching and the organisation of education systems.

bb) The fundamental right of freedom of research and teaching does not conflict with requirements ensuring proper teaching and a transparent examination system. However, quality assurance measures that interfere with the freedom of research and teaching, enshrined in Art. 5 sec. 3 sentence 1 GG, require, in conjunction with Art. 20 sec. 3 GG, an adequate legal basis. The rule of law and the principle of democracy oblige the legislature to enact provisions that are essential for the realisation of fundamental rights itself. As far as evaluative decisions relevant to fundamental rights are concerned, the legislature must determine by whom these decisions are to be adopted and what the relevant procedure will be. Regarding quality assurance in higher education institutions, the legislature must also establish an overall structure in which decision-making powers and participation rights, influence, information and monitoring are designed in such a manner as to avoid jeopardizing the freedom of academic teaching.

Generally, the legislature is free to make external quality assurance a requirement for higher education institutions. Such quality assurance for academic teaching need not be limited to scientific and technical criteria, but may also be used to assess the organisation of study courses, academic requirements and academic success. A higher education degree can only enable access to professions if university studies provide specific qualifications, if potential employers recognise its quality, and if the degree can be compared with other degrees in the labour market. Insofar, quality assurance of higher education studies serves to promote the freedom to practice an occupation protected under Art. 12 sec. 1 GG. Furthermore, the constitution does not prohibit external measures of quality assurance in teaching next to regular legal supervision. Furthermore, neither the obligatory participation of members of the higher education institution in quality assurance procedures nor the requirement of regular re-accreditation raises serious constitutional concerns.

cc) However, § 72 sec. 2 sentence 6 HG NRW (f.v.) does not provide for adequate legislative decisions concerning the evaluation criteria, the procedure and the organisation of the accreditation. This lack is not compensated by adequate legal provisions stipulated elsewhere, which § 72 sec. 2 sentence 6 HG NRW (f.v.) could refer to. In particular, there are no requirements for adequate participation of the research and teaching staff as such.

Concerning the assignment of quality control of higher education institutions to agencies organised under private law, which in turn are accredited by a foundation of a Land, the legislature has limited itself to a few statements in § 72 sec. 2 sentence 6 HG NRW (f.v.). It is not compatible with constitutional requirements that this provision (as well as § 7 sec. 1 sentence 1 HG NRW f.v. and c.v.) merely refers to “applicable regulations” to be followed for an accreditation. There is not even a rough determination of objectives identifying minimum standards regarding study courses and content and the professional relevance of degrees. Nor are there legal provisions regarding the initiation of the procedure, the accreditation procedure, the legal nature of the decisions taken by the agencies and the accreditation council of the Accreditation Foundation, regarding the consequences in case of failure to implement stipulations imposed by the agencies, as well as regarding the time periods between re-accreditations.

Nor is the lack of adequate statutory control compensated by other regulations. The legislature did not determine that the requirements for state institutions of higher education regarding the study objective, the structure of studies and the standard period stipulated in §§ 3, 7 sec. 2 and §§ 58, 60, 61, 63 HG NRW (f.v.) also constitute the requirements for programme accreditation. To a large extent, the Act on the Accreditation Foundation (Akkreditierungsstiftungsgesetz) leaves the procedure, legal nature and the legal effects of the accreditation decisions unspecified. There are no procedural safety mechanisms to ensure freedom of research and teaching or clear statements regarding legal protection against decisions by the council or the agencies. While §§ 6, 8 and 9 HRG also deal with teaching at higher education institutions, they do not regulate accreditation.

By passing the provision in question, the legislature factually gave up control over the statutory regulation of requirements for the accreditation regarding contents, procedure and organisation and has not taken the decisions that govern the grave interference with Art. 5 sec. 3 sentence 1 GG itself. Rather, many essential decisions are left to the accreditation council; and this gives very extensive leeway to the accreditation agencies. Due to the requirement to respect freedom of research and teaching, the legislature is precluded from regulating the specifics of teaching programmes. That does, however, not preclude the legislature from determining the objectives of the accreditation and the requirements regarding the accreditation procedure, or from regulating the academically adequate composition of the involved parties and from setting procedures used to establish and revise evaluation criteria. This approach would ensure rather than preclude that sufficient leeway is left for technical evaluation and expertise within the academic boards.

3. A provision referred for review in proceedings pursuant to Art. 100 GG, which proves to be incompatible with the Basic Law must principally be declared void. However, the Court may also limit its decision to declaring an unconstitutional provision incompatible with the Constitution.

Hence, §§ 72 sec. 2 sentence 6, 7 sec. 1 sentence 1 HG NRW (f.v.) prove to be incompatible with the requirements set forth in Art. 5 sec. 3 sentence 1 GG in conjunction with the principle of democracy and the rule of law. Incompatibility also extends to § 7 sec. 1 sentence 2 HG NRW (f.v.), since without an adequate legal basis for the accreditation the prerequisite of a successful accreditation which must be met before the higher education institution can start to operate does not fulfil the constitutional requirements. In the interest of legal clarity § 7 sec. 1 sentences 1 and 2 HG NRW (c.v.) are also to be declared incompatible with the Basic Law, since § 7 Abs. 1 sentence 1 HG NRW (c.v.) stipulates that the study programmes are to be accredited and re-accredited “in accordance with applicable regulations”.

4. The legislature must enact an amendment that takes the constitutional requirements into account. Since coordination processes across the Laender will be required, a sufficient time period is necessary to achieve this. Hence, it is ordered that those statutes that are incompatible with the Basic Law continue to be in effect until revised legislation is passed and at the longest until 31 December 2017.