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19.04.2021 | KPMG Law Insights

VG Gelsenkirchen: Requirements for the selection decision for the appointment of an advertised professorship

VG Gelsenkirchen: Requirements for the selection decision for the appointment of an advertised professorship

In a nutshell:

The Gelsenkirchen Administrative Court (VG Gelsenkirchen) granted an emergency appeal (§ 123 VwGO) filed by the applicant and declared the selection procedure carried out for the appointment of a new professorship to be filled to be unlawful. Due to a faulty selection procedure, in which further aspects than exclusively the professional suitability are taken into account, there is the possibility of a violation of the fundamental right from Art. 33 II GG, if the selected candidate is hired.

The respondent shall repeat the selection procedure and, in doing so, shall consider the applicant’s application once again, in accordance with the criteria established accordingly by the court. Until the respondent makes a new decision, the professorship may not be filled by the previously selected candidate.

Background:

The applicant had appealed against the selection decision for the appointment of an advertised professorship in Dutch studies of the respondent (a university). She criticizes that the members of the appointment committee were biased and not impartial, and for this reason no objective selection decision could be made for the advertised professorship. By these extraneous considerations, she claims a violation of her fundamental right under Article 33 II of the Basic Law to equal access to any public office according to aptitude, ability and professional performance. As a result of the erroneous appointment of the commission, the position was not offered to her, but to the respondent.

In addition, she complains that one of the independent experts who made a professional assessment of the candidates and was appointed by the respondent did not meet the requirements of § 9 I S.1 BO suffice. Thereby § 9 I S.1 regulates BO the professional suitability of an appraiser.

Decision:

In its decision of February 22, 2021 (12 L 1183/20), the Gelsenkirchen Regional Administrative Court upheld the applicant’s claim.

It finds that a claim for an injunction has been made credible in the context of the competitor dispute proceedings to the extent that a selection decision proves to be incorrect and, moreover, the applicant’s chances of being selected in the event of a renewed decision are at least not excluded. In particular, an imminent violation of Art. 33 II GG is to be assumed, since the application procedure has already been completed and a violation would occur through the implementation.

By way of introduction, the court defines the judicially reviewable framework of a selection decision in its order. According to this, only the proper staffing of the commission is open for review, as well as whether extraneous considerations were made with regard to the selection. The criteria to be applied to the specific professional suitability and abilities of applicants are the responsibility of the University and are not subject to judicial review.

Pursuant to § 10 I BO, the appointment committee is not properly constituted if the committee members have a relationship with one of the applicants that goes beyond occasional professional interaction. As a result, the impartiality of the members required by law can no longer be guaranteed. In the present case, the court assumed a relationship between two of the commission members that did not meet the requirements of impartiality. The specific infringement consists in the fact that two of the members are already in a better position to assess the respondent professionally, and thus have deeper insights and knowledge with regard to her professional qualifications than is permissible. This additional knowledge resulted from the previous participation in the evaluation commission of the defendant. The task of an evaluation commission in this context is to decide on the retention at the university and the extension of the civil servant relationship. For this purpose, an in-depth impression of the scientific and professional qualification is also made. Due to this different starting position, there is an objective concern that, in addition to the performance shown in the application procedure, the already known performance of the respondent was also included in the evaluation and that this resulted in a disadvantage for the applicant. The applicant’s competitor is also a junior professor of the respondent and thus already has a close professional relationship with the two commission members. This was also to be taken into account accordingly according to the appeal guidelines of the respondent. In the opinion of the court, the special position of the respondents was not sufficiently sensitively observed and taken into account with regard to the impartiality of the commission members. Commission members should have expressed doubts about their impartiality on their own initiative.

Even if the incorrect composition of the appointment committee does not make the final selection decision, but is merely to be seen as a dependent, legally non-binding intermediate act, it has a direct impact on the committee decision and final selection decision. This must therefore be regarded as defective in its entirety.

In addition to the defective composition of the appeals committee, the court also considers the selection of the independent experts to be defective. Expert opinions on the professional suitability of candidates can only be given by those reviewers who hold a comparable academic degree. Here, one of the three independent reviews of the selected candidate was written by a Dutch professor who only holds the rank of junior professor. This academic degree does not fulfill the requirements for a “professor” in the sense of § 9 I S.1. BO. The same scientific expertise is expected from a reviewer as is held by the applicant being reviewed. This was necessary, since otherwise no error-free assessment of the candidate’s scientific qualifications could be expected.

This is what readers can take away:

The principles developed for competitor disputes under civil service law are applicable in the context of Art.5 III GG is subject to judicial review. They also apply accordingly to procedures for filling a university professorship. If the selection procedure was not conducted without discretionary error, there is no right to obtain the professorship, but there is a right to a new selection procedure and appropriate consideration. Even if the appointment committee does not issue the call to the professorship, its work is considered essential to the selection process.

The present case shows how difficult it can be in the university context, where there are often only a few experts in a specific field, to form an appointment committee that meets the requirements of impartiality. Here, it is up to the universities and colleges to carefully select members. Otherwise, the selection process must be repeated, as is the case here.

The parties may appeal against the decision of the Gelsenkirchen Higher Regional Court, provided that the time limits have not yet expired.

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