25.04.2019 | KPMG Law Insights

VG Munich: Deficit in justification for selection decision

VG Munich: Deficit in justification for selection decision

Facts: An applicant for a W2 professorship at a Bavarian university was classified as “not eligible for listing” and his application was rejected. The applicant had not been convincing in his teaching samples, either professionally or pedagogically. The applicant initially lodged an unsuccessful appeal against the rejection notice and then filed a lawsuit. In his opinion, the selection decision was not sufficiently documented, referred only to the teaching samples and did not include the other application documents. In addition, the evaluation of his pedagogical aptitude was flawed. Pending a decision on the merits, the applicant requested that the university be prohibited from filling the advertised position by way of an interim injunction. The Administrative Court of Munich declared this application admissible as well as well-founded (VG München, decision dated 18.10.2018, ref.: M 5 E 18.1230).

Reasons for Decision: The applicant had substantiated both the need for interim relief (grounds for an order) and a sufficient prospect of success in the main proceedings (claim for an order) (Section 123 (1) of the Code of Administrative Procedure). The court stated that the filling of the advertised position with another applicant would be imminent unless it granted the application for interim relief. However, the applicant’s right to an application procedure can only be effectively secured as long as the position has not yet been filled, so that there is a reason for an order. It is true that the university has a right to freedom of research pursuant to the German Constitution. Art. 5 par. 3 GG, the Federal Constitutional Court has a special competence to assess the applicant’s academic qualifications, but the principles for competitor disputes under civil service law would apply here in the same way. If a selection decision proves to be based on an error of judgment, the unsuccessful applicant who does not have an obvious chance is entitled to a new decision on his or her application and the advertised position is not filled for the time being. In order to be able to review and understand the selection decision in this regard, both on the part of the unsuccessful applicant and the courts, a written record of the essential selection considerations is necessary. The merely general reference to the teaching samples in the minutes of the meeting of the Appeals Committee does not meet these requirements. The main reasons for the qualification as “not listable” remained unclear. At the very least, a keyword summary of the teaching samples and a statement of the selection criteria applied and weighted would be required. In the “application list with reasons for rejection”, too, there was only one general reason, which could even be read in the same wording in the case of another applicant. Whether this list could be regarded as documentation of the selection decision at all was in any case questionable due to the lack of indication of the date of issue and authors. In addition, there was no reference to the other application materials other than the teaching samples. At any rate, a rudimentary discussion of these should have taken place in the selection decision.

Significance for practice: The Administrative Court emphasizes the special assessment competence of universities based on Art. 5 para. 3 GG with regard to the applicants’ academic qualifications. However, this does not release the universities from comprehensible, individual documentation of the selection decision. Sufficient time and effort should therefore be devoted to this documentation as part of job filling procedures. Careful presentation of selection considerations can avoid litigation over staffing procedures and ensure effective staffing.

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