23.10.2019 | KPMG Law Insights

OVG Lüneburg: Unlawful termination of appeal proceedings

OVG Lüneburg: Unlawful termination of appeal proceedings


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.

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