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Legal provisions of the Federation and the Laender relating to university admissions to medical studies are partly incompatible with the Basic Law

Press Release No. 112/2017 of 19 December 2017

Judgment of 19 December 2017
1 BvL 3/14, 1 BvL 4/14

The legal provisions of the Federation and the Laender on university admissions procedures at public universities are, to the extent that they concern the admission to medical studies, partly incompatible with the Basic Law. This was decided by the First Senate of the Federal Constitu­tional Court in the judgment pronounced today. Both the challenged federal framework provi­sions and the legal provisions of the Laender on university admissions to medical studies violate university applicants’ entitlement, deriving from fundamental rights, to equal participation in the range of public study programmes. In addition, the legal provisions of the Laender on university selection procedures partly fail to meet the standards resulting from the requirement of a statu­tory provision. New provisions must be enacted by 31 December 2019.

Facts of the case:

The Gelsenkirchen Administrative Court (Verwaltungsgericht) referred the question whether the provisions on university admissions to medical studies set forth in the Framework Act for Higher Education (Hochschulrahmengesetz – HRG) and in the Laender provisions on the ratification and implementation of the State Treaty on the Establishment of a Joint Centre for University Admissions (Staatsvertrag über die Errichtung einer gemeinsamen Einrichtung für Hochschul­zulassung) are compatible with the Basic Law (Grundgesetz – GG) to the Federal Constitutional Court for decision. Press Release No. 69/2017 of 8 August 2017 contains information on further details (available in German on the Court’s website).

Key considerations of the Senate:

1. The legal provisions of the Federation and the Laender on university admissions to medical studies, which is a study programme subject to admission restrictions throughout Germany, are incompatible with Art. 12(1) first sentence in conjunction with Art. 3(1) GG, to the extent that they restrict the number of location preferences that may be indicated for applicants falling within the quota of the best Abitur graduates (Abiturbestenquote) and give these priority over the Abitur grade (Abiturnote) for admissions; to the extent that they allow the universities to unre­strictedly weight the criterion of location preference in their own admissions procedures; to the extent that they dispense with a balancing mechanism for rendering Abitur grades from different Laender sufficiently comparable in university admissions procedures; to the extent that they do not require the universities to consider, in addition to the Abitur grade, at least one further com­pulsory selection criterion for determining aptitude for studies that is not based on school grades; and, to the extent that they do not temporally limit the duration of waiting periods within the waiting-period quota. The setup of the universities’ selection procedures does not meet the standards of the requirement of a statutory provision to the extent that it is not ensured by law that the universities’ own procedures for assessing aptitude for studies nor the selection based on previous professional training and experience are conducted in a standardised and structured manner. The fact that Hamburg and Bavarian Land laws enable universities to autonomously define further selection criteria is also not compatible with the requirement of a statutory provi­sion.

2. a) The right to participate in the existing range of study programmes which were created by the state from public means results from the freedom to choose one’s training and one’s profes­sion (Art. 12(1) first sentence GG) in conjunction with the general guarantee of the right to equality (Art. 3(1) GG). Persons fulfilling the subjective requirements for admission hold a right to equal participation in range of public study programmes and thus an entitlement to equality-based admission to the study programme of their choice. Given that the question of calculating the number of available education places is, however, subject to decision by the democratically legitimated legislature, the right to equal opportunity in admission to university studies only ex­ists within the framework of actually available education capacities.

b) It results from the requirement of equality-based treatment that the rules on university admis­sions must, in principle, follow the criterion of aptitude. The type of aptitude relevant to the allo­cation of admissions is determined by the requirements of the specific study programme and the professional activities that usually follow. The legislature is not constitutionally bound to using a defined criterion of aptitude or a defined combination of criteria. However, the criteria must, in their entirety, guarantee a sufficient predictive value.

c) The university admissions procedure is an essential regulatory matter that constitutes the core of the admissions system and is therefore subject to the requirement of parliamentary decision. In that respect, the selection criteria must be, in regard of their nature, defined by the democrati­cally legitimised legislature itself. However, the legislature may leave a certain leeway to univer­sities with respect to specifying the statutorily defined criteria on the basis of which the aptitude of university applicants is to be evaluated. Both the immediate experience of universities and the constitutionally protected freedom of research and teaching justify such leeway. The authorisa­tion of universities to specify their own criteria translates, in particular, into the possibility of the universities determining their own aptitude assessments. However, the requirement of a statutory provision calls for statutory safeguards ensuring that universities conduct aptitude assessments in standardised and structured procedures.

3. a) Relying on the average Abitur grade for a share of 20% of all university admissions (quota of best Abitur graduates) in the context of key quotas is unobjectionable under constitutional law. In doing so, the legislature draws on performance evaluations of university applicants which were carried out by the schools upon completion of general education. On the basis of the pre­sented findings, it is constitutionally unobjectionable to assume that the Abitur grade is a proper aptitude criterion even for university admissions to medical studies. In particular, the legislature has taken precautionary measures with regard to federal differences in school education and in grading by establishing, as a means of compensation, Laender quotas within the quota of the best Abitur graduates in the context of the centralised allocation of university admissions.

b) In contrast, giving priority to the mandatorily indicated location preferences within the context of the quota of best Abitur graduates is not compatible with the constitutional requirement of equal participation, since the standard aptitude criterion of average Abitur grade is pushed aside and devalued by the priority of location preference. The Abitur graduates’ university admission chances thus depend predominantly on the location preference they indicated and only secondar­ily on their aptitude for the study programme. Within the framework of centralised university admissions on the basis of the average Abitur grade, this is not justifiable under constitutional law. With respect to a study programme that regulates access to a wide professional field, the question whether an applicant will be admitted to study at all must take precedence over the location preference. From a constitutional law perspective, the indication of location preferences may only be used as a secondary criterion for the allocation of available university admissions to selected applicants. Accordingly, allowing only six university locations to be indicated on applications for admission falling within the quota of best Abitur graduates is not constitutionally justified. In particular, it cannot be justified on the basis of procedural efficiency requirements.

4. For further 60% of the university admissions to be allocated within the key quotas, the legislature provides for selection procedures by the universities (university-selection-procedure quota). The setup of this procedure does not comply with the standards of the requirement of a statutory provision. In various regards, it also does not meet the substantial requirements of the right to equal participation in the range of public study programmes.

a) The federal framework provisions and the Lander provisions which further shape them by providing for definitive lists of criteria are generally unobjectionable. However, it is not compatible with the requirement of a statutory provision that Land laws in Bavaria and in Hamburg provide universities with the possibility of autonomously defining further selection criteria which are not mentioned in the statutory list of criteria. An autonomous right of universities to invent criteria is, in principle, not permissible under constitutional law.

b) In addition, the legislature must ensure that universities, if they do choose to exercise the statutorily provided option to conduct their own aptitude assessments or to take into account professional training or experience, do so in a standardised and structured manner. In doing so, the legislature must also provide that in university tests of aptitude for studies and in selection interviews only the candidates’ aptitude is assessed. The universities’ authorisation to specify their own criteria may only relate to the study programmes’ curricular setup and specialisation, including the development of university-specific profiles. The referred provisions do not fully meet these requirements. Both at the level of the federal Framework Act for Higher Education as well as that of the Laender provisions there is a lack of necessary statutory stipulations regarding the standardisation and structuring of procedures for assessing aptitude.

c) In principle, it is unobjectionable that the legislature allows the universities to conduct pre-selection procedures to limit the number of applications that are considered within the actual selection procedure. However, it is incompatible with the Constitution that this affords universities the possibility of basing, without precondition or restriction, their pre-selection on their rank in the location preference indicated by the applicants. The rank of location preference is a criterion unrelated to the aptitude for a study programme or profession and its use can result in substantially minimising an applicant’s chances.

The criterion of the rank of location preference is only justified if it is used for admissions which are actually allocated within the context of a complex individualised selection procedure as the legislature is right to consider conducting such selection procedures to be an important part of the entire system of university admissions. However, such a procedure can only be successful if the effort it requires is limited to such persons who will accept admission with a sufficiently high probability. The objective of allowing complex, aptitude-focused selection procedures therefore justifies applying, as an exception, the criterion of location preference in the course of a pre-selection in these cases despite its lack of connection to aptitude. However, this only applies if such complex selection procedures are indeed conducted subsequently, as, in particular, the qualified interviews provided in the list of criteria might be. In cases where no complex selection procedures are conducted, the pre-selection criterion of the rank of location preference proves to be improper and inappropriate. It is further required under constitutional law that only a sufficiently limited number of admissions be dependent on a high rank of location preference. Therefore, it must be ruled out that universities apply the criterion of location preference to all admissions that are to be allocated in the course of the selection procedure.

d) Both with regard to the pre-selection and the actual selection procedures, the legislature allows universities, inter alia, recourse to the average Abitur grade as a selection criterion. Unlike university admissions occurring within the quota of best Abitur graduates, here the legislature dispenses with mechanisms that compensate for the insufficiently provided comparability of Abitur average grades beyond Laender boundaries. Disregarding these differences leads to substantial unequal treatment. Thereby, it accepts that a large number of applicants will suffer substantial disadvantages depending on the Land in which they obtained their Abitur. This is true, in particular, given the fact that also universities’ selection procedures often depend on the marginal areas of the grading system and it is often the decimal points of average grades that are decisive for the success of an application. There is no plausible, reliable factual reason for such unequal treatment.

e) With regard to the universities’ selection procedure, the Framework Act for Higher Education and the 2008 State Treaty define various criteria which can be used by the universities for the selection of applicants. Each of these criteria taken separately is constitutionally unobjectionable as an indicator in an aptitude-focused selection procedure. However, in respect of the aptitude assessments and the qualified interviews to be conducted by the universities, it must be ensured that they are sufficiently structured, aimed at determining aptitude and that a discriminating application is prevented. The same applies with regard to the criterion of taking related professional training or experience into consideration. This can also provide an indication of aptitude for medical studies. Due to its vagueness, however, the specification of this criterion must be governed by transparent rules.

f) Finally, it is unconstitutional that the legislature does not provide sufficiently broad aptitude criteria for the selection of applicants in the universities’ selection procedures. Opening the selection procedures to include further criteria is not solely a free legislative decision, but is, to a certain extent, constitutionally required for guaranteeing equality-based university admissions. If the legislature – as it currently does – only provides for the universities’ selection procedures when it comes to taking into account aptitude criteria other than the average Abitur grade, then relevant requirements for the procedure’s setup will apply. It is insofar necessary that the legislature require that universities allocate their admissions based not only or even predominantly on the Abitur grade criterion, but to additionally include at least one criterion that is not based on school grades yet also relevant for aptitude. The current legal situation does not meet these requirements. Neither the Framework Act for Higher Education nor the 2008 State Treaty obliges universities to consider another criterion that is not based on school grades as required under constitutional law. Nor do the provisions supplementing the State Treaty in some Laender sufficiently ensure this.

5. Finally, in respect of 20% of the university admissions to be allocated in the context of the key quotas, the legislature provides for admissions dependent on the waiting period (waiting-period quota). Creating such a waiting-period quota is not impermissible under constitutional law, but is only compatible with Art. 12(1) in conjunction with Art. 3(1) GG under certain conditions. The current calculation of the quota is still constitutional. The legislature may, however, not raise the waiting-period quota beyond the ratio of 20% of university admissions to be allocated within the key quotas. It does prove to be unconstitutional that the legislature has not appropriately limited the duration of the waiting period, as waiting too long substantially impairs the chances of success in studies and therefore the possibility to actually choose one’s profession. If the legislature thus provides that a small part of the applicants be selected according to their waiting period, the Constitution requires limiting the duration of that waiting period to an appropriate measure in light of its negative consequences. This applies despite the fact that the limitation of the duration of the waiting period as required under constitutional law may result in many applicants not being admitted under the waiting-period quota. In addition, with respect to the waiting-period quota, as with the best Abitur graduates quota, procedural efficiency requirements that might render necessary numerically limiting location preference indications is not discernible. In this case, too, the legislature has attributed too much significance to the rank of location preference.

6. With the exception of § 8a of the Berlin University Admissions Act (Berliner Hochschulzulassungsgesetz) which deviates from the provisions of the Framework Act for Higher Education and is therefore void pursuant to Art. 31 GG, the challenged provisions are merely declared to be incompatible with the Basic Law. At the same time, their limited further application is ordered. The competent Laender legislatures are enjoined to enact new provisions until 31 December 2019, if and to the extent that the Federation has not made use of its concurrent legislative power until then.