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29.06.2021 | KPMG Law Insights

OVG Bautzen: No obvious procedural errors in the case of a resolution adopted via videoconference

OVG Bautzen: No obvious procedural errors in the case of a resolution adopted via videoconference

In a nutshell:

In a decision (19.03.2021 2 B 66/21), the OVG Bautzen rejected as unfounded an application for a judicial review in the interim legal protection of the election committee of a university. In the court’s view, there are “no overriding concerns” with an election ordinance adopted online. An obvious prohibition of the use of video technology for the adoption of resolutions of an election order is not to be inferred from the relevant norm even after examination of the four methods of interpretation, and is to be subsumed under the terms “attendance” and “meeting” (§ 54 para. 1 S.1 SächsHSFG).

Background:

Due to the Covid-19 pandemic, elections at the contending university had already been cancelled during the previous summer semester. These are to be made up through elections conducted online this summer semester. The legal basis for these online elections was created with the resolution of an election regulation in 2021. This came into force on 30.01.2020. The election regulations were adopted by the Rectorate with the consent of the Senate. The Senate resolution was previously obtained through a videoconference, which was duly summoned and during which all Senate members were given the opportunity to speak.

The petitioner, the election committee of the university, challenges the respondent with an administrative law norm control petition pursuant to § 46 VI VwGO and requests that the adopted election regulations of the university be provisionally suspended. He assumes that the election regulations are to be classified as unlawful, since iSd § 54 I S.1 SächsHSFG, the decision-making of the Senate via video conference is not sufficient and a physical presence of the members is mandatory. Thus, there is an incurable procedural defect from which the unlawfulness of the Election Regulations 2021 derives. In this context, the applicant refers primarily to the wording of the provision and to parallel provisions in municipal law. In addition, in certain legal areas, extra legal bases had been created that allow voting by video conference. This had not happened in the present case and it was therefore to be assumed that a resolution had to be adopted with the members present and could not be replaced by holding a video conference. He said the override was urgent because otherwise invalid online elections would be held.

The defendant, the university, considers the application already inadmissible, but in any case unfounded. In their view, the provision of § 54 I S.1 speaks SächsHSFG did not oppose the use of video technology and, accordingly, the Senate resolution was effective.

Decision:

The OVG considers the application to be admissible, but unfounded. The Election Committee is to be considered as a body pursuant to sec. § Section 61 No. 2 VwGO and is therefore also entitled to file an application, since it must apply the election regulations that are the subject of the dispute.

However, the court does not consider a temporary suspension of the election regulations to be necessary and rejects the application as unfounded. It was not evident that the application of the electoral regulations already in force would entail a serious disadvantage which could only be averted by the provisional abrogation. The standard of review in the interim legal protection of the judicial review proceedings is limited only to this consideration and is to be measured against the standard of Section 32 of the BVerfGG, which presupposes a particularly strict standard of application and any considerations cited with regard to substantive aspects cannot be open to review in the summary proceedings. The court thus considered its scope of review to be severely limited.

In the present case, the outcome in the main action was to be judged as open and the consideration of whether serious disadvantages would arise without the issuance of the temporary injunction was to be negated. A formal error due to the way the Senate passed its resolution could not be assumed to be obvious.

The court uses the four methods of interpretation for its decision.

Although it cannot be inferred from the wording of the standard with regard to the quorum that the use of video technology is equivalent to physical presence, the wording of the provision does not imply a corresponding prohibition. It does not already follow from the wording that a resolution of the Senate by video conference constitutes a procedural error and fails due to the required presence. Other forms of communication such as video chat and video telephony, which have been steadily developed and accepted in recent years, are also responsible for the fact that a change in language usage has developed with regard to the terms “meeting” and “attendance”, which also includes “online conferences” and “video switching”. According to the court, the presence is to be defined as follows: ” Presence in the sense of participation means thereafter active participation in the intellectual process of decision-making, in which each participant must be able to follow the deliberation and, if deemed appropriate, to express his opinion(…)”. Accordingly, the holding of a video conference satisfies the requirements for a meeting within the meaning of § 54 I sentence 1. VwGO.

Also according to the systematic interpretation, a procedural error could not be assumed. He said the comparison to other university regulations is not necessary or beneficial. Even the parallel provisions in state law cited by the petitioner, which explicitly created digital voting modalities, do not necessarily result in the amendment of the SächsHSFG and require a corresponding parallel provision for the validity of the Senate resolution.

Furthermore, even after the teleological consideration, there are no concerns regarding a procedural error of the Senate resolution due to the video conference. The purpose of the provision of § 54 para. 1 S. 1 SächsHSFG is to ensure the legitimacy of the quorum. The legitimacy of the discussion and the subsequent decision-making process are not called into question by the video conference format. The presence of the members – according to the meaning and purpose of the provision – was not affected by the online execution and for this reason was teleologically unobjectionable.

In the present case, the provision does not require consideration of the historical interpretation, since the forms of communication involved could not have been taken into account at the time of the adoption of the Saxon Higher Education Act from a factual point of view.

In the opinion of the court, the weighing of consequences carried out in the context of the examination of Section 47 VI VwGO is also to the detriment of the applicant. It was not evident why an unavoidable disadvantage would arise if the Electoral Regulations 2021 were not provisionally suspended. Particularly in view of the fact that the elections have already had to be made up since the last summer semester, it is imperative that the elections be carried out even with the risk that they could subsequently prove to be invalid. However, the court does not assume this.

What can readers take away:

The lack of an explicit mention of the possibility of an “online meeting” in a norm does not suggest the illegality of a decision that was not reached through a vote in physical presence, but through a vote in the context of a video conference.

Language usage and the development of communication media also change the understanding of legal terms and regulations and must always be interpreted and applied in the context of the time.

Particularly strict requirements are to be placed on the standard of review on application for a temporary injunction against a norm that has already been put into effect, which are based on the review of Section 32 of the BVerfGG.

 

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