VG Düsseldorf: Loan period exceeded by university lecturer
Facts: A university teacher borrowed 50 books for research purposes from her university’s library and did not return them until more than 30 days after the loan period had expired. She then received a fee notice from the university for exceeding the loan period in the amount of 2,250 euros. The university lecturer filed a complaint against this decision. The Düsseldorf Administrative Court dismissed the action and declared the notice to be lawful (ruling dated October 19, 2018, Ref.: 15 K 1130/16).
Reasons for Decision: There were no legal objections to the levying of the fees. The charges were lawfully calculated in accordance with the University Library’s fee schedule. Contrary to the opinion of the university lecturer, there could also be no violation of the freedom of research and teaching pursuant to §§ 3 and 4 of the German Constitution. Art. 5 par. 3 sentence 1 of the German Basic Law (GG). Although the university teacher with a civil servant status was entitled to have the university provide the necessary resources for research and teaching (so-called minimum equipment), even if the books from the library fell within this minimum equipment, this did not entitle her to the delayed return of the books. Instead, the university instructor could have taken advantage of the option to extend the loan period. There was also no infringement of the prohibition on charging administrative fees for official acts resulting from employment relationships (Section 7 (1) No. of the Fee Regulations of the State of North Rhine-Westphalia). The charges would not be linked precisely to an official act within the employment relationship, but rather to a breach of duty in her role as a user of the library. The accrual and due date of the fees did not require a reminder to return the books or any fault on the part of the defaulting user. It was also not evident that the university lecturer intended to lend a so-called “handbook”, the loan period of which in principle only ends at the end of the academic year.
The amount of the fee assessment was also unobjectionable. Both the late fees of 20 euros and the administrative fees of 25 euros per book were not disproportionately high for a loan period overrun of more than 30 days. In principle, the level of fees was not only justified by the principle of cost recovery, but could also serve to guide behavior and compensate for benefits. The late fee, he said, is intended to encourage timely returns in the interest of other users. The administrative fee was already reasonable in view of the staff required, among other things, to monitor the loan period, to prepare and send the notice of payment and to monitor the receipt of payment. In addition, there is the cost of materials, e.g. stationery and postage. By borrowing the books, users would have the advantage of not having to purchase the work. If one compares the purchase prices of scientific books with the fees to be paid, the fees – in this case 45 euros per book – are at least generally still cheaper than the purchase.
Significance for practice: As a rule, university teachers have the same rights and obligations as users of the university library as all other users. The court leaves open whether the right to borrow books is part of the minimum equipment of tenured university teachers at all. At the very least, one’s position as a university instructor does not entitle one to exceed the loan period without consequence. The common option of setting up handbooks creates an opportunity for faculty to make necessary literature accessible throughout the academic year. With regard to the amount of the fees, the court clarifies that lump-sum approaches and the estimation of anticipated costs are legitimate when setting the fees. The proportionality of the fee amount is maintained as long as there is no gross disproportion to the purpose of the fee – cost recovery, behavioral control, benefit sharing.
Nevertheless, the question arises whether universities really want to impose such fees on their university teachers if they are unwilling to return books or also fail to fulfill other duties that affect everyone at the university. It seems appropriate, at least for reasons of the university’s duty of care, to issue a reminder at least initially, if necessary also via the dean of the department. Therefore, the decision is quite surprising, but it also shows that the administrative courts are prepared to make tough decisions. Thus, there is no “protection of academic freedom” at any price in case law.
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