BVerwG: On the encroachment on the scope of duties of a university lecturer

In a nutshell

The BVerwG ruled on 03.02.2021 (BVerwG, judgment of 03.02.2021 – 2 C 4.19) that a civil servant professor who – in addition to her duties in research and teaching – had assumed management functions in the area of patient care at the university hospital according to her originally agreed job description is not protected by academic freedom from having her job description changed. According to the judges in Leipzig, this applies at least as long as the share of activities in the area of patient care is maintained, which is necessary for the fulfillment of the tasks in research and teaching.

Background

The plaintiff in the original proceedings had taken up a professorship in 2005 – initially on a temporary basis – in the context of which, according to the job description, she also took over the management of a department at the university hospital. In February 2011, the decision had been made to convert her temporary position as a professor into a tenured position (this took effect in July). During the same period (February 2011), the clinic, which had since been privatized, had decided to restructure, affecting, among other things, the department headed by the professor.

Accordingly, in the future, the clinical area of hepatology / gastroenterology / visceral medicine of the University Hospital should be divided into two main areas (on the one hand, hepatology / gastroenterotology and on the other hand, the Central Interdisciplinary Visceral Endoscopy [ZIVE]). The professor should take over the management of the Hepatology / Gastroenterotology area, but not of the ZIVE focus, by which the majority of endoscopic procedures should be performed. This left the professor, in her own opinion, with only a minimal management function in patient care, which did not represent an appropriate share for a professor of human medicine.

By letter dated April 2011 and reference to Section 68 para. 1 Hessian Higher Education Act (HHG), the university president explained to the professor that her job description would be adapted to the restructuring of the clinic in the future. The professor challenged this decision with an appeal, which the university president rejected as inadmissible and unfounded. This was a decision under civil service law concerning their employment. Thus, there was already no administrative act and the university president was responsible as the supervisor.

In the previous instances (most recently: VGH Kassel, judgment of 21.02.2019 – 1 A 710/17), the courts had assumed that the change in the job description of a professor would be an administrative act that would in any case affect her academic freedom (Article 5 (3) of the German Basic Law). This is also violated if the area of clinical activity, which cannot be strictly separated in human medicine, is affected to such an extent that the professor can no longer adequately fulfill her duties in research and teaching.

Finally, another question was how the restructuring of the university hospital might affect the professor’s job (and job description). The VGH Kassel found that – if one interprets the regulation of § 68 para. 1 HHG – only the job description (but not the underlying circumstances) is decisive for the structure of the employment relationship. A change in this could only be made after a review within the meaning of § 68 para. 1 p. 2 HHG, i.e. based on the performance of the teacher. The restructuring of the clinic was thus not suitable to justify the change in the functional description.

In the opinion of the lower court, the decisive factor was that the change in the job description was a question of higher education law (and not civil service law), for which the university president was not responsible as the supervisor, but the university presidium. Thus, the university president was not responsible for the corresponding adjustment of the job description and thus issued it in a formally unlawful manner.

Decision

The BVerwG now contradicted the assessment of the VGH Kassel in essential points. The freedom of science does not extend so far that the activity of a professor at a university hospital, as defined in a job description, after its restructuring, necessarily includes a management function in the area of patient care, in addition to her activities in research and teaching. With regard to this question, it had to be taken into account in particular that the activity of providing patient care for university lecturers at a university hospital was part of the organizational structure of the hospital. If the organizational structure of the hospital changes, this could also affect a functional description regulating the activities in patient care.

However, under these circumstances, the preservation of an appropriate field of activity in patient care is protected by the freedom of science, which offers a sufficient basis of medical knowledge in terms of scope and content for the subject to be represented in research and teaching.

Formally, the description of the function does not constitute an administrative act, which is why the action brought is already inadmissible as an action for annulment. The decision was referred back to the VGH Kassel for a new decision. The VGH must now decide in particular whether the description of the function meets the established minimum requirements of academic freedom.

It is not clear from the press release published to date whether the BVerwG thus considers the determination of the job description to be a question of civil service law (and not – as the lower courts did – a question of higher education law). For this, publication of the decision must be awaited.

What can readers take away?

• Academic freedom protects the activities of professors in the field of patient care in a university hospital only to the extent that these are necessary for the representation of the subject in research and teaching.
• The modification of a functional description is possible, among other things, if the conditions on which the description is based have changed.
• A professor’s job description (and its amendment) does not constitute an administrative act.