Berlin Higher Education Act
In an order published today, the First Senate of the Federal Constitutional Court held that § 110(6) second and third sentence of the Berlin Higher Education Act (Berliner Hochschulgesetz – BerlHG) is incompatible with Art. 5(3) first sentence and Art. 74(1) no. 12 in conjunction with Art. 72(1) of the Basic Law (Grundgesetz - GG) and is void.
The complainant is a public university operated by the Land Berlin. It challenges the obligation of Berlin public universities to provide a permanent contract to all postdoctoral researchers with whom the university has a fixed-term employment contract if, at the end of the fixed term, the postdoctoral researcher has achieved the qualifications that were agreed upon at the time the contract was concluded.
The constitutional complaint is successful. § 110(6) second sentence of the Berlin Higher Education Act interferes with the fundamental right of academic freedom pursuant to Art. 5(3) first sentence of the Basic Law. The provision is formally unconstitutional because the Land Berlin lacks legislative competence.
Facts of the case:
The challenged Land law rule in § 110(6) second sentence of the Berlin Higher Education Act requires public universities in the Land Berlin to grant a permanent contract to all postdoctoral researchers on fixed-term contracts if, at the end of the contractual term, the postdoctoral researcher has achieved the qualifications agreed upon at the time the contract was concluded. The rule applies to postdoctoral researchers who start a fixed-term contract on or after 1 January 2026.
In contrast, the federal Academic Fixed-Term Contract Act (Wissenschaftszeitvertragsgesetz - WissZeitVG) permits universities to enter into fixed-term employment contracts with postdoctoral researchers for a qualification phase without the future obligation to enter into a permanent contract.
With its constitutional complaint, the complainant asserts a violation of its academic freedom protected by Art. 5(3) first sentence of the Basic Law.
Key considerations of the Senate:
The constitutional complaint is admissible and well-founded.
1. § 110(6) second sentence of the Berlin Higher Education Act interferes with the complainant’s fundamental right of academic freedom pursuant to Art. 5(3) first sentence of the Basic Law. This right functions as a defensive right against state interference in academia. Personnel decisions relating to professorships responsible for the process of academic research and teaching and their research associates or the universities’ mandate to promote the development of new researchers are also subject to the protections of academic freedom.
The challenged rule deprives universities of the possibility to make their own determination as to whether to continue to employ a postdoctoral researcher after successful completion of the qualification phase. This directly curtails the freedom of universities in the selection of their research personnel to detrimental effect, such as with regard to the development of new academics, which requires the possibility of fixed-term employment contracts in order to allow for the qualification phase.
2. The interference with the fundamental right of academic freedom is not constitutionally justified. § 110(6) second sentence of the Berlin Higher Education Act is formally unconstitutional. The provision does not fall within the legislative competence of the Land.
a) The challenged provision falls within the scope of legislative competence under Art. 74(1) no. 12 of the Basic Law in the area of ‘labour law’, which is a concurrent legislative power. This legislative competence provides for a wide-ranging power to enact legislation on the legal relationships between employers and employees; it also extends to the legal relationships with public employees, at least in terms of the length and termination of the employment relationship.
The legislative competence pursuant to Art. 74(1) no. 12 of the Basic Law must be distinguished from other legislative competences of the Federation and the Länder for legal relationships with public employees. The Federal Constitutional Court has thus far only decided in a few specific cases the extent to which public service law must be distinguished from labour law within the meaning of Art. 74(1) no. 12 of the Basic Law. An exhaustive determination is also not necessary in this case. In a prior case involving the application of an employment protection rule that only applied to public employees, the Federal Constitutional Court held that the federal legislator could assert its legislative competence for labour law in that instance. Pursuant to this decision, the challenged obligation of universities to ensure permanent positions for all postdoctoral researchers on fixed-term contracts who successfully achieve the qualification criteria is also subject to labour law within the meaning of Art. 74(1) no. 12 of the Basic Law. Like the provision on employment protection, this rule also affects the length and termination of the employment relationship.
b) The Land Berlin cannot assert its legislative competence here because the federal legislator has exercised its legislative competence in labour law and has enacted definitive provisions on the length and termination of the employment relationship for postdoctoral researchers in positions in the qualification phase within the meaning of the Academic Fixed-Term Contract Act. Land law regulation of this area, such as that expressed in § 110(6) second sentence of the Berlin Higher Education Act, is therefore prohibited by the preclusive effect of Art. 72(1) of the Basic Law. The definitiveness of the federal rules regarding fixed-term contracts results from their wording, systematic approach, legislative history and their legislative purpose. A preclusive effect must also be assumed here due to the fact that the legislative materials indicate that the federal legislator deliberately chose not to include provisions similar to the challenged Land law.