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21.05.2021 | KPMG Law Insights

OVG Münster: Use of the professional title “engineer

OVG Münster: Use of the professional title “engineer

Issue: An employee who had been working in the construction industry for many years successfully completed a one-year course of further education at the Cologne University of Applied Sciences to become a fire protection construction manager. He later enrolled in a certificate program in “Preventive Fire Protection.” Due to the lack of a first university degree, he had to pass all examinations of the four-semester certificate program by the third semester in order to subsequently transfer to the master’s program. He successfully passed this aptitude test. Subsequently, he also successfully completed the master’s program with the degree “Master of Engineering (M. Eng.)”. He then applied for registration as a voluntary member of the NRW Chamber of Civil Engineers. This application for registration was rejected by the Ingenieurkammer-Bau NRW. The plaintiff had no legal right to the registration. He had not completed a scientific or technical course of study as defined by the Engineering Act. The Administrative Court dismissed the action against the decision issued. In the appeal proceedings, the Higher Administrative Court of Münster recently had to clarify the question under which conditions a university graduate in North Rhine-Westphalia is entitled to use the professional title “engineer” (OVG Münster, judgment dated March 5, 2018, Ref.: 4 A 542/15).

Reasons for Decision: The legal basis for the inclusion is § 38 para. 2 Sentence 1 lit. b) in conjunction with. § 30 para. 1 No. 1 Building Chamber Act NRW (BauKaG), § 1 para. 1 No. 1 lit. a) NRW Engineering Act (IngG). The prerequisites are that the applicant is active in the construction industry (Section 29 (2) BauKaG), is entitled to use the professional title “engineer” (Section 30 (1) No. 1 BauKaG), is not registered in the list of consulting engineers and has his main residence or place of employment in NRW. The authorization to use the professional title “engineer” is based on § 1 para. 1 No. 1 lit. a) IngG, which requires a successfully completed course of study in a technical or scientific field (hereinafter referred to as technical studies) at a German university lasting at least three years. The plaintiff fulfills these requirements. He had successfully completed a two-year advanced technical master’s degree (“Preventive Fire Protection”) at a German university with the master’s examination. With the admission to the master’s program, the equivalence of his professional qualifications with those of a completed undergraduate degree had been established. In addition, he successfully completed a one-year advanced technical degree program to become a fire protection construction manager. Overall, the plaintiff had thus successfully completed a technical course of study at a German university over the minimum duration of three years.
The term study refers to the process of studying. The study would not necessarily have to be within a degree program. Graduates must be given the opportunity to make up for missing study time by taking a separate technical course of study instead of having to complete a completely new three-year course of study. The requirement of a successful completion of studies also does not depend on a specific degree. It is not necessary that the course of study be undergraduate (bachelor’s degree), nor can it be inferred from the law that a certain proportion of “engineering-specific” course content is prescribed. These requirements would also not result from further interpretation. The latter had been suggested by the NRW Chamber of Civil Engineers, among others, but had not yet been expressly included by the legislator. Furthermore, the assessment of whether the relevant minimum duration of studies is present is based solely on the years of study. The number of hours of instruction or the number of credit points received are irrelevant for this purpose.
Significance for practice: The regulations in the engineering laws of the federal states differ. Recently, in June 2018, a new model engineering law was passed by the Conference of Economic Ministers of the German states. This also includes a requirement for a minimum proportion of “engineering-specific” subjects in mathematics, computer science, natural sciences and technology (STEM). The engineering laws of the federal states are to be based on this model engineering law. With the agreed minimum content of 50%, this requirement still falls short of the demand of various associations. In the Lower Saxony Engineering Act, a minimum of 70% is already required to use the professional title “engineer”. Developments in the countries therefore remain to be seen. However, in the absence of such a provision, it cannot be “read into” the law. In the event of changes to the state law regulations, however, engineers who have already been registered may assume that they will continue to be entitled to use the professional title of “engineer” in order to protect their legitimate expectations.

Do you want to get in touch with the author? Then call Jannike Ehlers at +49 (0)40 360994-5021 or write to her at jannikeluiseehlers@kpmg-law.com – she looks forward to hearing from you.

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