Order of 30 September 2025 - 1 BvR 1141/19
Thuringian Higher Education Act
In an order published today, the First Senate of the Federal Constitutional Court decided a constitutional complaint challenging provisions of the Thuringian Higher Education Act (Thüringer Hochschulgesetz – ThürHG) lodged by professors from several higher education institutions in the Land Thuringia.
The provisions challenged in the constitutional complaint essentially concern the central and decentralised organisation and structure of universities and other higher education institutions in Thuringia. In particular, the complainants assert that these provisions violate their academic freedom following from Art. 5(3) first sentence of the Basic Law (Grundgesetz – GG).
The constitutional complaint is unsuccessful for the most part. It is in large part inadmissible. Most of the challenges that are admissible are unfounded. The challenged provisions of the Thuringian Higher Education Act grant the complainants a level of participation that gives sufficient consideration to their academic freedom. A violation of academic freedom can only be found with regard to § 35(3) first sentence, § 35(4) and § 40(1) first and second sentence of the Thuringian Higher Education Act, which concern the voting rights of representatives of the group of employees in facilities management and the administration for decisions of the university senate (the central self-government body for the university) and other bodies of self-government; these provisions are incompatible with academic freedom due to the voting weight accorded to this group. The Federal Constitutional Court declared these provisions to be incompatible with the Basic Law. The provisions will continue to apply until the legislator has enacted new provisions, or 31 March 2027 at the latest.
Facts of the case:
The Thuringian Higher Education Act underwent several revisions as part of sweeping higher education reforms.
The provisions of the Thuringian Higher Education Act challenged here concern the organisation and structure of universities at the central level and decentralised bodies below this level. These provisions form part of an amendment to the law concerning, inter alia, the representation of different groups belonging to the university in self-government, changes to the distribution of powers within the organisation of universities and measures to improve teaching. They provide for two different compositions for the university senate and the decentralised self-government bodies administering the university. The type of matter to be decided determines the composition in which the bodies meet. In the standard composition, the four groups (professors, students, research assistants and employees in facilities management and the administration) each have one quarter of the seats and votes. By contrast, for matters that directly concern teaching (with the exception of its evaluation), research, artistic development projects and the appointment of professors, the group of professors has a narrow majority of seats and votes.
Key considerations of the Senate:
A. The constitutional complaint is admissible only in part.
I. The constitutional complaint lodged by professors from Jena University Hospital – some of whom are no longer at the institution – is inadmissible in its entirety. These complainants fail to sufficiently demonstrate that the challenged organisational rules concerning university medicine and Jena University Hospital may have violated Art. 5(3) first sentence of the Basic Law.
II. The remainder of the constitutional complaint is only admissible insofar as it challenges the provisions on seeking candidates for the election of the university president, the removal of the university president, the composition of the mediation committee, the final decision-making power of the university president in disputes as to which composition a matter requires, and the voting rights of the group of employees in facilities management and the administration in the senate and in the decentralised self-government bodies.
The constitutional complaint is inadmissible insofar as the complainants assert that a majority of seats and votes of the group of professors in all matters decided by the senate is the only feasible option and that the distinction between matters to be decided by a senate composition with parity and those to be decided by a composition with professors in the majority is not workable in practice.
B. To the extent that the constitutional complaint is admissible, it is well-founded in part.
I. Art. 5(3) first sentence of the Basic Law grants individuals a fundamental freedom and contains a fundamental precept of values that governs the relationship of academia, research and teaching to the state. In organising universities, the legislator must guarantee a sufficient level of participation for holders of the fundamental right of academic freedom and create an overall structure for the organisation of academic freedom in which decision-making powers and participation rights, influence, information and scrutiny are designed in such a way as to avoid structural risks to the freedom of academic teaching and research. With the present higher education structures, this concerns the relationship between representative bodies and leadership bodies and their appropriate internal design.
With regard to the internal design of such representative bodies, an appropriate level of participation of holders of the fundamental right of academic freedom requires that they can contribute their expertise as members of the body in question to realise academic freedom and that they can avert risks to academic freedom that may arise from decisions that are inadequate from an academic point of view.
If professors can prevail over the other groups in academically relevant matters, an appropriate level of participation is ensured.
Moreover, the protection from inadequate decisions requires that the overall composition of the bodies that serve to give effect to the right of holders of the fundamental right of academic freedom to participate in the organisation of the university does not allow for considerable non-academic influence in academically relevant decisions. Thus, when academically relevant decisions are at issue, academic freedom under Art. 5(3) first sentence of the Basic Law requires that the voting weight of groups whose activities are not directly related to research and teaching is sufficiently limited or that the representatives of such groups have a sufficient link to academia. This does not completely rule out the participation of the group of non-academic staff in such decision-making, but it requires that, if they are granted undifferentiated participation rights within the group, they make up a significantly lesser share of votes than the groups that have direct links to research and teaching.
II. The admissibly challenged provisions of the Thuringian Higher Education Act do not fully satisfy these standards.
1. a) The provisions on seeking candidates for the election of the university president and their removal through a recall election do not violate the complainants’ right to participation following from Art. 5(3) first sentence of the Basic Law. It is true that the influence of the group of professors on these decision-making processes is limited. According to the legislative approach, they can contribute their proposals to the selection committee, but cannot prevent the committee from including candidates in their nominations that have been rejected by the professors. They can prevent the removal of the university president with their votes, but cannot bring about such removal themselves.
b) However, academic freedom does not require giving more influence to the group of professors. The presidium, and the president as its chair, who determines guidelines for the presidium, have far-reaching powers in academically relevant matters. However, the legislator has ensured that the group of professors has such far-reaching influence on these decisions that the level of participation is sufficient to give effect to academic freedom and that decisions that jeopardise academic freedom can be prevented.
With regard to key academic decisions on the development, organisation and resources of universities, the group of professors has sufficient influence to guarantee the necessary minimum level of participation. This concerns, in particular, the powers of the presidium for concluding the framework agreement and target and performance agreements, for structural and development planning, the principles governing resources and internal allocation of funds, and regarding vacant professorships.
2. The procedure for allocating matters as between the respective senate compositions is compatible with Art. 5(3) first sentence of the Basic Law with regard to the composition of the mediation committee and the final decision-making power of the president on the allocation of matters.
The fact that only one representative from the group of professors is involved in the mediation procedure is not objectionable under constitutional law, insofar as § 37(2) of the Thuringian Higher Education Act is interpreted in conformity with the Constitution in such a way that the representative has the power to bring about the failure of the mediation procedure. Following a failed mediation attempt, it falls to the university president to determine whether a matter is to be decided by a senate composition with parity or by a composition with professors in the majority; this is also not objectionable under constitutional law.
3. However, the statutory design of the undifferentiated voting rights for representatives of the group of employees in facilities management and the administration regarding senate decisions pursuant to § 35(3) first sentence and § 35(4) of the Thuringian Higher Education Act and regarding decisions of decentralised self-government bodies pursuant to § 40(1) first and second sentence of the Thuringian Higher Education Act is incompatible with academic freedom.
a) The group of employees in facilities management and the administration has the same voting weight in the senate and in decentralised self-government bodies as the group of research assistants and the group of students.
b) The legislator failed to provide for safeguards required under Art. 5(3) first sentence of the Basic Law against the structural risk of inadequate influence on decisions of the senate and decentralised self-government bodies.
The legislator created structural risks to academic freedom by extending the voting rights of employees in facilities management and the administration to academically relevant affairs, without requiring that the representatives of this group have a sufficient link to academia or providing for sufficient restrictions of their voting weight in order to prevent inadequate influence. The law does not guarantee a sufficient link to academia with regard to representatives of employees in facilities management and the administration in the senate and the decentralised self-government bodies. This group is defined precisely by a lack of activities that are directly related to academia. § 35(3) first sentence, § 35(4) and § 40(1) first and second sentence of the Thuringian Higher Education Act allow the group of employees in facilities management and the administration to be represented in the senate and the decentralised self-government bodies by members whose specific activities – while essential for the operations of the university – do not have a particularly close link to research and teaching and who nonetheless participate in decision-making without restriction. Nor is the voting weight of employees in facilities management and the administration for academically relevant decisions so low that the possibility of inadequate influence on decision-making of the holders of the fundamental right would be a merely hypothetical risk.