Search
Contact
23.10.2019 | KPMG Law Insights

OVG Lüneburg: Unlawful termination of appeal proceedings

OVG Lüneburg: Unlawful termination of appeal proceedings

Facts:

The legal dispute between a university and an applicant for a professorship deals with the question whether the reduction of the value of a doctoral grade due to location- and subject-specific peculiarities of the university doing the doctorate by the competent ministry constitutes an objective reason for the termination of an appointment procedure. The applicant obtained her doctorate with the grade “magna cum laude”. The university considered the special qualification of the applicant required according to § 25 para. 1 no. 3 of the Lower Saxony Higher Education Act (NHG) to be proven by the above-average doctorate and placed the applicant on the first place of the appointment proposal for the responsible ministry. The ministry decided to appoint the second-ranked applicant, who declined the appointment, deviating from the order of the appointment proposal with the consent of the university. Other names, despite 14 other applicants, were not in the appointment proposal. The Ministry of Higher Education ruled out the appointment of the first-placed applicant for lack of proof of the requirement for appointment according to § 25 para. 1 no. 3 NHG. Her doctoral grade was only to be evaluated as average due to location and subject-specific characteristics of the doctoral university. Thus, there was a factual reason for the discontinuation of the examination procedure. After being informed of the discontinuation by the university, the applicant applied for interim legal protection and was unsuccessful at first instance. On her appeal, the Higher Administrative Court of Lüneburg (OVG Lüneburg, decision of 02.05.2019, ref.: 5 ME 68/19) decided to change the decision of the Administrative Court (VG) and to oblige the university to continue the appointment procedure, taking into account the other applicants.

Reasons for Decision:

The termination of the appeal proceedings proved to be unlawful due to the lack of a substantive reason. Although the decision on the appointment ultimately lies with the ministry, the universities have a decision-making prerogative with regard to the assessment of the qualifications and suitability of the applicants. The university’s appointment proposal thus has a binding effect in principle, provided there is no cause for objection. The decision of the university is protected by the presumption of professional correctness and also serves to protect the freedom of science (Art. 5 Para. 3 GG), the right of participation and the self-organization of the universities. The departmental ministry may only deviate from this for special reasons, e.g. in the case of legal errors such as the non-existence of the hiring requirements of § 25 NHG. Such special reasons were not apparent in this appeal. According to § 25 para. 1 No. 3 NHG, the special aptitude for in-depth independent scientific work is usually demonstrated by an above-average doctorate. The applicant’s doctoral grade of “magna cum laude”, like the grade of “summa cum laude”, represents an above-average performance under all doctoral regulations, and the university was correct in concluding that the applicant’s special qualifications had been demonstrated. The Ministry has no discretion to reduce the value of a doctoral grade on the grounds that, statistically speaking, this grade is merely average at the university awarding the doctorate or in the department concerned. Moreover, the comparative figure of eight doctorates used by the Ministry was not at all sufficient to draw conclusions from. In doing so, the Ministry had inadmissibly interfered with the university’s assessment competence. Contrary to the assumption of the Administrative Court, the university had not adopted the legal opinion of the Ministry when it terminated the appointment procedure; rather, the university had made it clear in various forms that it was convinced of the applicant’s suitability and had requested her appointment on several occasions.
Significance for practice: With this decision, the OVG strengthens the rights of participation and the possibilities for self-organization of the universities. Although the department may deviate from the order of an appointment proposal, return it in its entirety or even terminate the appointment procedure, this always requires a special reason. Factual reasons for discontinuation are, for example, if the position is no longer to be filled or is to be cut differently, or if no applicant meets expectations. According to the ruling, the university decides on the latter primarily and bindingly, provided that it does not exceed its scope for evaluation. A justified overruling of the assessment of the university by the department is thus only the exception.

Explore #more

02.04.2026 | KPMG Law Insights

Building Modernization Act (GMG): What is now important for companies

The planned Building Modernization Act (GMG) is set to replace significant parts of the previous Building Energy Act (GEG). Companies in the real estate industry,…

01.04.2026 | In the media

Manager Magazin: KPMG Law in first place for legal advice

Every two years, Manager Magazin, together with the Wissenschaftliche Gesellschaft für Management und Beratung (WGMB), awards Germany’s best auditors with a “Best-in-Class” seal and evaluates

27.03.2026 | KPMG Law Insights

Special Infrastructure Fund and State Aid Law: Orientation for Funding Practice and Planning

The special fund “Infrastructure and Climate Neutrality” (SVIK) also entails considerable responsibility under state aid law for federal states, municipalities and recipients of funds. Anyone

23.03.2026 | Deal Notifications

KPMG Law, KPMG Law AT as well as KPMG in Germany and KPMG in Austria advise GOLDBECK GmbH on the acquisition of 50 percent of the shares in ZAUNERGROUP Holding GmbH

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) and Buchberger Ettmayer Rechtsanwälte GmbH (KPMG Law AT) as well as KPMG AG Wirtschaftsprüfungsgesellschaft (KPMG in Germany) and KPMG…

19.03.2026 | KPMG Law Insights

Business Judgement Rule in the use of AI: how governing bodies are liable for decisions

If an AI provides the basis for business decisions, the people responsible are liable, not the machine. This makes the use of artificial intelligence risky…

16.03.2026 | KPMG Law Insights

KPIs in the legal department: How legal becomes strategically effective through control, transparency and data analysis

Today, legal departments are facing a strategic turning point: they must reliably hedge risks, but at the same time enable speed, control costs and make…

13.03.2026 | KPMG Law Insights

Commercial courts: when they are worthwhile for companies – and when they are not

Large commercial disputes are given courts specially tailored to their needs: the Commercial Courts. The German legislator introduced it with the Act to Strengthen the

10.03.2026 | Deal Notifications

KPMG Law advises on the sale of Krasemann Hausverwaltung to Buena

KPMG Law Rechtsanwaltsgesellschaft mbH (KPMG Law) provided legal advice to the KRASEMANN family on the sale of KRASEMANN Immobilien- & Gebäudeservice GmbH (KIGS) and KRASEMANN…

09.03.2026 | KPMG Law Insights

MiCAR and whitepaper obligations – what the transitional regulations mean

The Markets in Crypto-Assets Regulation (MiCAR) has been in force for just over a year. Among other things, MiCAR obliges issuers and providers of crypto…

09.03.2026 | In the media

Guest article in Private Banking Magazine: What tokenized banknotes mean in day-to-day treasury operations

The future of payment transactions will be shaped not by new currencies, but by new processing models. A practical report by Marc Pussar (KPMG Law),…

© 2026 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.

KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.

Scroll