OVG Lüneburg: Faculty council not responsible for granting teaching assignments
Issue: After filling a vacant position at an institute of a university in Lower Saxony, the university felt that there was no longer a need to continue to grant teaching assignments to an associate professor. As a result, students collected signatures with the goal of having the faculty council, which is considered to be responsible, deliberate on the further awarding of teaching assignments to this professor. The Dean of the Faculty informed the representative of the student initiative that the Dean’s Office had decided in a non-public meeting not to submit a corresponding application to the President’s Office for the granting of the teaching assignments. As a result, the representative of the initiative filed a motion to compel the Faculty Council to immediately deliberate on the award by way of a temporary injunction. This request was rejected by the administrative court. The Higher Administrative Court now had to decide on the appeal filed against this and confirmed the decision of the Administrative Court (OVG Lüneburg, decision dated 13.02.2019, ref.: 2 ME 707/18).
Reasons for Decision: The representative of the student initiative had both standing to sue and to file an appeal in an administrative proceeding against the university to enforce the rights of the initiative, and the appeal was therefore admissible. However, the complaint was unfounded. He said the initiative calls for the Faculty Council to deliberate on the matter. According to § 20 a of the Lower Saxony Higher Education Act (NHG), students could only demand this from an organ of the university if it was also legally responsible for the particular matter. In this case, the Faculty Council lacked the authority to grant individual teaching assignments to non-university persons. Gem. § 44 para. 1 sentence 1 NHG, the Faculty Council decides on matters of fundamental importance, i.e. on questions that could be of importance in an indefinite number of further cases and thus require uniform handling in the interest of all faculty members. This is the case, for example, with decisions on faculty structural and development plans. The granting of individual teaching assignments to a particular professor was not a matter of fundamental importance. Moreover, the students would not have a claim to very specific courses or specific content designs of these. The freedom to learn and study as part of the academic freedom of education (Article 12 (1) of the Basic Law) exists solely within the framework of the existing range of studies and courses offered by a university. In addition, he said, the Faculty Council’s jurisdiction finds its limits in the responsibilities of the Dean’s Office. According to the NHG, the Dean’s Office is responsible for all matters of the Faculty, unless another responsibility is determined. Thus, the Dean’s Office is also responsible for the Faculty with regard to the application to the Presidential Board for the granting of fixed-term teaching assignments pursuant to §§ 3 and 4 of the German Civil Code (BGB). § 34 para. 1 sentence 1 NHG is responsible.
Apart from that, there was already no reason for an order due to the lack of urgency of the matter. The requested teaching assignment related to a semester that had expired both at the time of the administrative court’s decision and during the appeal proceedings. The request had therefore already been dealt with.
Significance for practice:
The delineation of responsibilities within the university has not been conclusively clarified in many university laws to date. Therefore, case law must often provide legal certainty, as in this case.
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