BVerwG: Amendment of examination regulations with effect for active students

BVerwG: Amendment of examination regulations with effect for active students

In a nutshell

In a decision (BverwG Beschl. vom 15.03.2021 – 6 BN 2.20), the BVerwG dealt with the question under which conditions the retroactive amendment of an examination regulation is lawful. It stated that the principle of equal opportunity under examination law does not preclude a subsequent change and also an accompanying unequal treatment of students from different semesters. In addition, the main question was whether the amendment in question constituted a genuine or non-genuine retroactive effect. In the case at hand, the BVerwG considered the change in the consideration of module grades in the overall grade to be a non-genuine retroactive effect that sufficiently took into account the protection of legitimate expectations.

Background

A student of a master’s program had wanted to defend himself against a change of the examination regulations (PO) of his program after the beginning of his studies. While in the old version of the PO (valid at the beginning of his studies) it was possible to disregard the grades from courses from the elective or elective area (up to 15 credits) when calculating the final grade, this possibility was dropped by the change of the PO. Even after the change, the so-called “free shot” regulation has been retained, which makes it possible to rewrite exams that have been passed, if they were written for the first time at the earliest possible time.

The transitional regulation of the PO stipulated that for students who were in their fourth semester (or higher) when the PO was adopted, the old version of the examination regulations would continue to apply. The program is basically designed for four semesters.

The student was in his third semester of the program and felt the new rule violated the legitimate expectation he had. He had based his previous study planning on the fact that he could later disregard individual elective courses in the grade calculation. For this reason, he had also waived the free shot option for individual performances that tended to be worse and had to prepare for a significantly worse final grade as a result of the new regulation. In addition, the rule, for no particular reason, treats him differently than students in the 4th semester (or higher).

Thus, for the assessment, it came down to two questions:

1. Is the unequal application to students in the 4th semester (or higher) compared to 3rd semester (or lower) students justified from the point of view of the principle of equal opportunity under examination law?
2. Is the application of the new version of the examination regulations to students who are already enrolled a so-called non-genuine retroactive effect (which is permissible in principle) or a genuine retroactive effect (which is impermissible in principle)? The decisive factor is whether the regulated matter has already been completed.

The student considered the rule (and its application to students already enrolled) to be a true retroactive effect. It interferes with a matter that has already been concluded (namely: the subsequently changed consideration in the formation of the overall grade of examinations that have already been written). The possibility of repeating the examinations written under the free-shot rule does not change this assessment. On the one hand, because the examination regulations stipulate a one-year period for this, which could already have expired in some cases. Secondly, because the repeated preparation for an examination also prolongs the study and the constant updating of knowledge, after the completion of a module and the renunciation of a new attempt afterwards, cannot be expected.

The university disagreed and said that this was a non-genuine retroactive effect, because the regulation only concerned the formation of the overall grade, which only took place when all the necessary achievements had been made – the matter was therefore not yet concluded for all those who had not yet made all the achievements. The principle of the protection of legitimate expectations under the rule of law is not impaired because the trust worthy of protection in this respect is sufficiently taken into account by the free-fire provision.

Decision

In procedural terms, the proceedings before the BVerwG were an appeal against the non-admission of the appeal. Accordingly, the BVerwG initially limited itself to the procedurally prescribed test catalog. It dealt with the question of whether the case was of fundamental importance (Section 132 (2) no. 1 VwGO). The BVerwG denied this with reference to existing case law of the BVerfG and other federal courts, which undoubtedly allowed the question to be answered.

In terms of content, it emphasized that it essentially shared the previous-instance decision of the OVG Lüneburg (judgment of 23.9.2020 – 2 KN 378/19).

On the issue of unequal treatment

The BVerwG stated that it had been clarified by the highest courts that a differentiation according to the progress of studies constitutes an appropriate reason for a differentiation. The corresponding statements of the OVG Lüneburg, which had focused on the special situation of students in the last semester of the master’s degree, could not be objected to and the unequal treatment was justified.

On the question of genuine / non-genuine retroactivity

The BVerwG also agreed with the statements of the OVG Lüneburg with regard to the classification as genuine / non-genuine retroactivity. The OVG had essentially agreed with the university’s argumentation and based its decision on the fact that the matter was only concluded when all the services necessary for calculating the overall grade had been provided. According to the court’s assessment, this constituted a (fundamentally permissible) non-genuine retroactive effect. However, even in the case of non-genuine retroactivity, the regulations must be measured against the protection of legitimate expectations guaranteed by the rule of law, legal certainty and proportionality.

In order to ensure proportionality, the BVerwG held that the importance of the new regulation for the public good must outweigh the disappointed trust of the individual. The OVG Lüneburg had considered the amendment to be a proportionate regulation. In particular, taking into account the (equality-law) improvements brought about by the new version of the examination regulations (such as the abolition of the possibility of not taking into account academic achievements, which only favors a small group of students), the new regulation pursues a legitimate purpose, using an appropriate means, which is also necessary and reasonable.

However, even with a non-genuine retroactive effect, examinees would be protected from surprise changes in examination conditions that devalued examination dispositions. However, this does not mean a fundamental protection of the examinees against a change of the examination regulations in the course of their studies, as long as the university takes into account that an appropriate transitional regulation does not lead to undue hardship. However, if, as is the case here, the possibility of retaking examinations (which are now to be included in the final grade) continues to exist as a result of the free-shot regulation, the trust worthy of protection is sufficiently taken into account.

What can readers take away?

When amending an examination regulation with effect for active students, the constitutional principles of the protection of legitimate expectations (in particular the fundamental prohibition of a genuine retroactive effect) must be observed. However, the rulings also show how a legally secure (retroactive) amendment of the examination regulations can succeed.