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25.04.2019 | KPMG Law Insights

BVerfG: University chancellor in temporary civil service

BVerfG: University chancellor in temporary civil service

Among the federal states, there are numerous different designs on the legal status of the university chancellor. Appointment as a civil servant – unless the chancellor is an employee under private law – is for a fixed term in some federal states and for life in others. The breaking of the lifetime principle as a traditional principle of the civil service requires justification. Whether such a justification exists in the case of the Brandenburg Higher Education Act (BbgHG) now had to be assessed by the Federal Constitutional Court (BVerfG, decision dated April 24, 2018, Ref.: 2 BvL 10/16).

What is it about?

In 2005, a new chancellor was appointed at a Brandenburg university for a six-year term. Previously, he was a civil servant for life in the service of the State of Brandenburg. In 2011, he was confirmed in office for a further six years. He filed a lawsuit against this further time limit and requested to be appointed for life. The action was unsuccessful both before the Administrative Court and in the appeal proceedings before the Higher Administrative Court of Berlin-Brandenburg. The courts based their decisions on the fact that the regulations in question concerning the appointment of the chancellor were not unconstitutional and served to secure the position of the president as a monocratic university management body. As part of the appeal before the Federal Administrative Court (BVerwG), the Brandenburg regulation on the temporary appointment of the chancellor was submitted to the BVerfG for a review of its constitutionality.

What did the court decide?

The admissible submission of the BVerwG is also well-founded. According to the BVerfG, Section 67 para. 2 sentence 3 half sentence 1 of the Brandenburg Higher Education Act in the version of 28.04.2014 (BbgHG) and § 67 para. 2 sentence 3 half-sentence 1, § 93 para. 2 in conjunction with. § 68 para. 4 BbgHG in the version of 06.07.2004 with Art. 33 para. 5 of the German Basic Law (GG) and is null and void.

For the reasons

The provisions of the BbgHG regarding the appointment of the university chancellor as a civil servant for a fixed term interfered with the lifetime principle as a traditional principle of the civil service in accordance with the German Civil Code. Art. 33 par. 5 Basic Law (GG). There is no justification for this intervention.

Interference with the lifetime principle

Public service law is governed by the law of the Federal Republic of Germany pursuant to sec. Art. 33 par. 5 of the German Basic Law (GG), taking into account the traditional principles of the civil service. This includes the core set of structural principles that have developed over a tradition-building period and are recognized as binding today. In addition to the principle of alimentation, which ensures that the salary is appropriate for the position, the lifetime principle is also part of this. The aim of these structural principles was to ensure the independence of civil servants in the interest of an administration based on the rule of law. In this context, the principle of alimony ensures economic independence on the one hand and the lifetime principle ensures legal or personal independence on the other. The civil servant could not be removed from an office arbitrarily or at the discretion of political bodies on the basis of the lifetime principle. Thus, the civil servant represents a counterweight to political forces and can insist on an official conduct in accordance with the rule of law, even if this is (party-)politically undesirable. The lifetime principle covers not only employment for life but also the lifetime transfer of an office. It is precisely the inalienability of the office that ensures independence in its execution. Further developments of the civil service are not excluded in principle, but should not change its structure and fundamental character.

This lifetime principle is broken by the regulations in the BbgHG. The BbgHG provides for the appointment of the Chancellor for a fixed term if he is appointed from a civil service relationship for life. If the Registrar is appointed on the basis of an employment relationship, he shall receive a fixed-term employment contract under private law. The intended term of office would be six years. Reorders are possible, he said. At the end of the term of office, the former chancellor would be dismissed from his temporary civil service. The current version of the law only provides for the possibility of a transfer to the state service, which depends on a mutual agreement. Accordingly, this was not at the sole disposition of the official. The situation is different for university chancellors whose first appointment took place before December 19, 2008. A transitional regulation of the BbgHG still applies to them. According to this, there is an entitlement to be taken on in the state service with a legal position comparable to the position before appointment as chancellor. The prerequisite for this is an application by the civil servant within three months of the expiry of the term of office and prior employment in the civil service. The takeover is thus at the sole disposition of the official. However, even in the case of this bound entitlement to take over, it was not guaranteed in the abstract that the civil servant would receive a position corresponding to this office in terms of status after the term of office as chancellor.

The fact that the official voluntarily submitted his application for the position of chancellor and was thus also prepared to give up his civil servant status for life in exchange for the civil servant status as chancellor did not constitute an encroachment. The objective scope of the right equivalent to fundamental rights under Art. 33 para. 5 GG is therefore not diminished. In addition, a tenured applicant could not make a free choice about applying because he or she would retain his or her legal status only if he or she chose not to apply.

Whether the regulation of the BbgHG was in accordance with the constitution thus depended solely on the question of the justification of the interference.

No justification from university management model

Within the framework of the BbgHG, the Brandenburg legislature has opted for a strong monocratic leadership position of the university president in accordance with the BbgHG. § 64 para. 1 BbgHG decided. The president leads the university and represents it externally. In addition, it is responsible for all tasks for which no other responsibility is regulated by the BbgHG. Among other things, this included the establishment and dissolution of departments, the preparation of concepts for university development, and the preparation and management of the budget. In addition, the President is the supervisor of all academic, artistic and non-academic staff, including the Chancellor.

The Registrar shall, pursuant to sec. § 67 para. 1 BbgHG the administration under the responsibility of the president and be commissioner for the budget. Due to the position of the President as his superior, the Chancellor’s scope for decision-making and action must lie within the framework of action specified by the President. In this respect, the Chancellor’s powers would be limited by the President. It should also be assumed that the President could issue individual instructions to the Chancellor. As a budget officer, the Chancellor had been expressly assigned to the President under organizational law as the person responsible for drawing up and managing the budget.

The centralization of competencies and management powers in the person of the President was also not objectionable in principle. The state legislature is in principle free to choose certain forms of organization for the university. The GG does not prescribe any particular form of university organization. However, he said, the legislature must create a framework that avoids dangers to the freedom of teaching and research. This includes the possibility for the scientists to contribute their expertise to science-related topics through their representation in the university bodies. They would also have to be involved in the appointment and dismissal of management bodies. The more science-relevant personnel and factual decision-making powers are removed from the participation of the scientists, the stronger their participation in the appointment and dismissal of this manager and his decisions must be. Under these requirements, monocratic governing bodies are compatible with the constitution. In the strictly monocratic management model of the BbgHG, the question of influence and control of academically active persons only extends to the relationship with the president, not to the chancellor who is subordinate to him. The court was not required to consider whether the chosen model was the most appropriate, reasonable or equitable solution.

However, the selected university leadership model does not provide sufficient justification for breaking the lifetime principle. The assignment of the Registrar to the President did not result in the necessity of a temporary civil service relationship. No loyalty relationship of the Chancellor to the President going beyond general duties of loyalty under civil service law could be derived from the assignment. The chancellor stands in the tension between university management and the administrative apparatus. On the one hand, he was under the responsibility of the president and had to support his decisions; on the other hand, he was responsible for their implementation. In doing so, he said, he was charged with maintaining continuity, expertise and independence. Continuity is ensured by the six-year term of office and the expertise is ensured by the qualification requirements according to the law. § 67 para. 3 secured. The independence is limited by the constitution in the duty of loyalty under civil service law, which also includes the lawful orders of the superior. According to the BbgHG, the chancellor does not have any creative competence but, as head of the administration, a purely factual competence. Within this framework, he said, he must ensure an administration based on the rule of law and create a stable and law-abiding administration in the higher education policy power game. In this context, he said, a minimum degree of independence from the president was essential. However, this was not the case if reappointment was dependent on the President and if no reappointment was guaranteed, there was no guarantee of a transfer to the state service with comparable legal status.

No justification from freedom of science

The defendant’s presumption that the independence of the Registrar, which is mediated by the lifetime principle, could have an inhibiting effect on science also does not justify the break. It is not comprehensible why the chancellor in particular, as the head of the administration, should have a negative influence on the realization of the free scientific enterprise. As a close associate of the President, he had to support and implement the President’s decisions and thus also had contact with issues relevant to science. However, it is not equipped with its own room for maneuver in matters of higher education policy. The president’s high degree of autonomy would not be limited by a more “inflexible” appointment to the chancellor’s office. In fact, a new appointment after the expiry of a fixed term is easier than a transfer or dismissal, but this requirement can be justified in terms of academic freedom pursuant to Section 5 of the German Constitution. Art. 5 par. 3 sentence 1 of the Basic Law and also does not constitute a justification for the interruption.

No justified exception

The principle of transferring the office for life was not without exception. In some cases, breaches of the lifetime principle are recognized. However, these recognized exceptions could not be compared to the office of university chancellor. The office is neither comparable to that of a municipal election official nor to that of a political official.

The decisive criterion of differentiation of the municipal elective official in contrast to the normal case of the civil servant relationship lies in the democratic act of election which has to be renewed periodically. The appointment and reappointment of the university chancellor by the president under the BbgHG differs significantly from this. The university chancellor, unlike the president, is not elected by a university body and thus there is no permanent feedback to the supporting will of an electoral body. This is different with regulations of other federal states, he said. In North Rhine-Westphalia and Baden-Württemberg, for example, the chancellor is also appointed for a fixed term, but there he also bears responsibility for higher education policy and is selected by an act of election. However, the introduction of an election act in the BbgHG alone would not justify the breaking of the lifetime principle,without upgrading the Chancellor’s area of responsibility. The independent conduct of office would remain endangered due to subordination to the president. In addition, the selection decision of the President was subject to the principle of selection of the best candidates pursuant to Section 161 of the German Stock Corporation Act (AktG). Art. 33 par. 2 GG bound. This could be overlaid in the case of municipal election officials due to the political-democratic ties.

The office of the university chancellor cannot be compared with political officials either, he said. Political officials would hold necessary key political positions for the effective implementation of the government’s policy objectives. Officers depend on the support of these officials, he said. Although the chancellor had the task of implementing the university policy decisions of the president, the concept of a political official was to be limited to the closest circle of direct advisors to the holders of political offices. The university chancellor does not belong to this group.

Alternatives

However, other options would be available to the state legislature to implement the desired university management model with Art. 33 para. 5 of the German Basic Law. First, he said, the permissible option remains to appoint the chancellor from a salaried position to a temporary salaried position.

On the other hand, the adoption of the regulations made by the states of Mecklenburg-Western Pomerania and Bavaria is an alternative. Each of these would provide for the appointment of the Chancellor as a civil servant for life, but this would initially be on a probationary basis. During the probationary civil service, chancellors would first have to prove themselves in their office. This was constitutionally permissible.

It is also conceivable to maintain independence despite the temporary civil servant status. The prerequisite for this, he said, is the inclusion of a bound claim for transfer to the state service. In deviation from the existing transitional regulation, however, this would only ensure the preservation of independence if the entitlement to a position in the state service existed that was comparable in status to that of the Chancellor’s Office.

Significance for practice

The ruling issued is not only significant for the Brandenburg state legislature. The majority of the states provide for the appointment of the university chancellor as a temporary civil servant. While this is not fundamentally unconstitutional, it does require appropriate regulations to safeguard independence. The BVerfG has listed conceivable alternatives to this, such as the regulations of the states of Bavaria and Mecklenburg-Western Pomerania. The BVerfG’s ruling should encourage the affected states to review their own higher education laws and, if necessary, initiate appropriate changes. The question of how to ensure the independence of chain-tenured docs and post-docs remains interesting.

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