25.04.2019 | KPMG Law Insights

BVerfG: Reimbursement of unconstitutional re-registration fees

BVerfG: Reimbursement of unconstitutional re-registration fees

Facts: After the Federal Constitutional Court (BVerfG) declared the regulation of the Brandenburg Higher Education Act in the versions applicable from 2001-2008 unconstitutional with regard to re-registration fees, two former students of the University of Potsdam sued for reimbursement of the re-registration fees they had paid during this period (BVerfG, decision dated January 17, 2017, Ref.: 2 BvL 2/14, 2 BvL 5/14, 2 BvL 4/14, 2 BvL 3/14). The University of Potsdam had previously rejected the reimbursement because the claims were time-barred. The VG Potsdam ruled in favor of the plaintiffs and ordered the university to refund the fees in the amount of 51 euros per semester (ruling dated March 29, 2019, Ref.: VG 1 K 996/18 and VG 1 K 1207/18).

Ruling of the BVerfG: The provision of Section 30 para. 1 lit. a) S. 1 Brandenburg Higher Education Act (BbgHG) in the versions of 2000 and the amended version of 2004 is incompatible with the Basic Law and is null and void insofar as fees in the amount of 51 euros (DM 100) per semester were charged for each re-registration. The provision merely indicates that the purpose of the fee is to cover costs. There was no evidence that the fees were intended to compensate for any other administrative services. However, 51 euros per semester would be significantly higher than the actual (calculated) administrative costs for re-registration of 20 euros. Thus, there was a gross disproportion between the fees and the purpose of the fees. The declaration of invalidity of the regulation would apply retroactively to the date of its first entry into force.

Reasons for decision of the Administrative Court: The University violated the principle of good faith by raising the defense of limitation. In 2004, the university’s rector had told student representatives in the then Senate that the legal basis for paying re-registration fees could only be dropped if the BVerfG declared them unconstitutional. The judgment of the BVerfG would therefore have to be awaited and a waiver of the plea of limitation with regard to possible repayment claims would therefore not be necessary. The plaintiffs had relied on the rector’s statement and waited for the BVerfG’s decision instead of taking timely action to interrupt the statute of limitations, for example by filing a lawsuit. The rector’s statement had the sole purpose of preventing further lawsuits against the university at that time. Many students had already sued for reimbursement in 2001 and had already received their money back. It would therefore be contrary to the principle of good faith if the University were now to raise the defense of the statute of limitations.

The VG allowed the appeal to the Higher Administrative Court (OVG) on the grounds of fundamental importance. The judgment is therefore not yet final.

Significance for practice: The Brandenburg Higher Education Act has since been amended. While there is still a 51 euro fee for re-registration, there has been a more detailed breakdown of what administrative services this covers. The fee is now generally levied “for administrative services provided by the universities to students in the course of their studies outside the scope of subject-specific supervision” (§ 14 para. 2 p. 1 BbgHG).

The ruling of the BVerfG makes it clear that the legislature must ensure an appropriate relationship between the purpose and the amount of the fee when setting fees. A subsequent assertion that, contrary to the wording, the fees were also levied for other services or purposes cannot be successfully invoked.

The ruling of the VG first shows that students may trust statements made by the university management. At the very least, the university administration may not subsequently reproach students for this or take advantage of it. In the event of an appeal, it remains to be seen whether the ruling of the VG will be confirmed by the OVG.

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