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

22.05.2024 | KPMG Law Insights

The AI Act is coming: EU wants to get a grip on AI risks

For many people, artificial intelligence (AI) is the great hope for business, healthcare and science. But there are also plenty of critics who fear the…

17.05.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: When the family business is to be sold

Around 38,000 family businesses are currently handed over each year. In most cases, the change of ownership takes place within the family. But more and…

03.05.2024 | KPMG Law Insights

Doubts about inability to work? What employers can do

The certificate of incapacity for work (AU certificate) serves as proof of incapacity for work due to illness. However, only if the certificate meets certain…

29.04.2024 | KPMG Law Insights

Agreement on ecodesign regulation: products to become more sustainable

After lengthy negotiations, the Council and Parliament of the European Union reached a provisional agreement on the Ecodesign Regulation on the night of December 5,…

27.03.2024 | KPMG Law Insights

EU Buildings Directive: life cycle greenhouse potential becomes relevant

On March 12, 2024, the EU Parliament approved the amendment to the EU Buildings Directive. The directive obliges member states and, indirectly, building owners and…

19.03.2024 | Business Performance & Resilience, KPMG Law Insights

CSDDD: Provisional agreement on the EU Supply Chain Directive

The EU member states agreed on the CSDDD, the EU Supply Chain Directive, on March 15, 2024. Germany abstained from the vote. Negotiators from the…

21.02.2024 | KPMG Law Insights, KPMG Law Insights

The Digital Services Act – what does it mean for companies?

The Digital Services Act (DSA) is a key component of the EU’s digital strategy and came into force on November 16, 2022. As a regulation,…

15.02.2024 | KPMG Law Insights

Data compliance management: How to implement it in practice

Part 3 of the article series “Professional tips for data compliance management”   The third part of this series of articles deals with data compliance

14.02.2024 | Business Performance & Resilience, PR Publications

Guest article in ZURe: Monitoring the implementation of the LkSG

The current issue of ZURe (p. 20 ff.) contains a guest article by KPMG Law Partner Thomas Uhlig (Head of General Business and Commercial Law),…

09.02.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: The employment law function

In almost all German companies, the employment law function is located in the HR department and not in the legal department. One of the reasons…

© 2024 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