06.12.2013 | KPMG Law Insights

Higher education law: No “eternity guarantee” for doctoral degrees

Dear Readers,

With our information letter “Science & Law” we would like to inform you at regular intervals about legal topics related to education, science, research and transfer.

KPMG Rechtsanwaltsgesellschaft mbH (KPMG Law) sees itself as an independent business-oriented full-service law firm and is closely associated with its cooperation partner KPMG AG Wirtschaftsprüfungsgesellschaft and its Audit, Tax and Advisory business units. With more than 180 employees at 15 locations, we are a dynamically growing, internationally oriented law firm. From employment law to competition law, from manageable local challenges to the most complicated transnational issues, you can trust our lawyers to provide you with tailored answers.

The Public Sector Practice Group comprises more than 40 lawyers nationwide who specialize in supporting the public sector and its companies in connection with the organization, realization and financing of public tasks as well as in advising the private business partners of the public sector.

We wish you interesting reading!

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

The Federal Administrative Court recently ruled in its judgment of July 31 that a doctoral degree may be withdrawn not only because of dishonest conduct in the course of the doctoral procedure, but rather also because of dishonorable conduct occurring later.

Principles of good scientific practice must be observed on a permanent basis

In the opinion of the Federal Administrative Court and the Baden-Württemberg Constitutional Court, which heard the case in the lower court, this requires serious violations of the principles of good scientific practice and honesty. Due to such violations, the appearance of scientific conformity of the work justified by the award of the doctoral degree turned out to be inaccurate. Continued use of the title would then be unacceptable and would have to be corrected, not least to protect the credibility of science in the public eye, by withdrawing the doctoral degree.

According to case law, in order to revoke the doctoral degree, it is necessary to prove intentional or grossly negligent violations of core scientific obligations, such as the prohibition of manipulation and falsification of data or research results. Criminal misconduct, on the other hand, was not required.

Doctoral degree includes qualification for scientific work

The reasons given by the courts to justify the withdrawal of the title on the grounds of significant scientific misconduct are plausible: unlike other university degrees, the doctoral title does not merely provide formal proof of a level of education once achieved, but rather confirms to the title holder that he or she is (permanently) capable of independent scientific work. The holder of the title thus benefits from an increased leap of faith, which may not be sustained in the case of scientific dishonesty.

EU state aid law: aid for R&D not significantly simplified

As part of its initiative to modernize EU state aid law launched in 2012, the European Commission has published a draft recast of the General Block Exemption Regulation (GBER).

The GBER applies, among other things, to the area of research and development (R&D) and is applied here in addition to the EU framework for R&D aid. Provided certain conditions are met, the GBER exempts state R&D aid from the notification and approval requirement with the EU Commission that applies in principle.

However, the requirements for an exemption are high and regularly require a precise examination on the basis of the specific individual case. This has not changed with the new version now presented. In particular, the existence of an incentive effect of the aid and its proportionality must still be demonstrated in an objectively verifiable form. In addition, strict limits still apply to the aid intensity permitted in each case, and the amount of aid granted may not exceed certain thresholds.

Essential innovations of the AGVO

  • Double the exemption thresholds for grants in the areas of basic research and industrial research up to an amount of 40 and 20 million euros, respectively.
  • Slight increase in exemption thresholds for experimental development grants from €7.5 million to €10 million.
  • Research infrastructures: Elimination of the notification requirement for grants of up to EUR 15 million that support the establishment or expansion of research infrastructures that carry out economically relevant activities. The prerequisite for this is transparent and equal access to market conditions.

Hochschulrecht / Prüfungsrecht: No right to re-evaluation of exam exams in case of significant linguistic deficiencies

In its ruling of July 17, 2013, the Kassel Administrative Court decided that severe language deficits can lead to failure of the entire exam.

The court thus shares the legal opinion of a Hessian university, which rated a written examination performance as part of a teacher’s examination as “failed” due to a lack of command of the German language in terms of spelling, grammar and punctuation.

The plaintiff had filed an action to have his written examinations graded with at least sufficient marks, and alternatively he wanted to have his examinations re-evaluated or at least be allowed to repeat the examination in question. He based his argumentation essentially on the fact that the university had recognized his professional achievements, and therefore his linguistic deficits could not be so serious. The Administrative Court of Kassel considered the examination candidate’s ability to express himself correctly in terms of language in a scientific examination to be an independent assessment criterion. Language skills are likely to be evaluated by the university separately from purely technical qualifications. An exam is a scientific paper that must always meet high linguistic standards.

The court rightly concludes that an examination candidate who does not have an adequate command of the examination language cannot pass an examination despite possible professional qualification. Particularly since the principle of equal opportunity prevailing in examination law stipulates that all candidates be given the same examination and assessment opportunities. After that, quality standards – in this case, language – must be demonstrated by all exam candidates. In addition, no candidate may be granted a further repeat attempt that is no longer provided for in the study and examination regulations. An appeal against the judgment is permitted on the grounds of fundamental importance.

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Mathias Oberndörfer

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