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20.01.2021 | KPMG Law Insights

VG Munich: Obtaining of external and comparative expert opinions and use of external personnel consulting firm in the preparation of an appointment proposal for filling a university professorship

VG Munich: Obtaining of external and comparative expert opinions and use of external personnel consulting firm in the preparation of an appointment proposal for filling a university professorship

In a nutshell

The VG Munich (decision of 11.11.2020 – M 5 E 20/2270) ruled that it was within the discretion of the appointment committee to initially determine some candidates as “provisionally not eligible for listing” in the appointment procedure for the preparation of the appointment proposal, but to still have these candidates assessed externally and comparatively. In addition, the appointment committee would also be allowed to use an external personnel consulting firm to prepare the appointment proposal.

Background

An applicant for a W2 professorship in French with a focus on business French and cultural and country studies of the Francophone region at a university was not included in the appointment list. He objected to this decision, in particular because it had been reached in violation of the procedure. Thus, in the preparation of the appointment proposal, external comparative expert opinions had also been obtained for such applicants who – like the applicant – had already been classified by the appointment committee as “provisionally not eligible for listing”. In addition, no outside human resources consulting firm should have been involved in the decision. The external evaluators had rated the applicant as “not suitable”; in the overall assessment of the HR consulting firm, he had ranked last among all applicants, but had still been rated as “suitable.”

Decision

However, his application for interim relief in the competitor dispute proceedings was rejected. The applicant had not made a plausible case that he was entitled to claim damages from his application procedure under Art. 33 Para. 2 GG, Art. 94 para. 2 sentence 2 of the Bavarian Constitution, he had a right to a new decision on his application and not to have the position filled for the time being. This is because the selection decision of the appointment committee was reached without procedural error in the multi-stage appointment procedure pursuant to Art. 18 BayHSchPG.

In particular, the obtaining of external and comparative expert opinions also on the applicants assessed as ineligible for listing was within the legal framework and could not be objected to.

According to Art. 18 para. 4 p. 5 BayHSchPG, the Appeals Committee draws up a proposal for an appointment, which should include three names, and obtains external and comparative expert opinions.

However, neither the wording nor the purpose of this provision can be interpreted as meaning that these expert opinions may only be obtained for candidates who are eligible to be listed. It is true that it would generally make less sense to have an expert opinion prepared for an applicant who has already been classified as ineligible for listing. In principle, however, it was at the discretion of the appeals committee to decide which sources it needed in order to obtain a comprehensive picture of the group of applicants. In the present case, the Appeals Committee had only provisionally decided on the eligibility of the applicants and reserved the right to make a final decision once the expert opinions, statements, etc. were available. There is no legal objection to this.

Contrary to the applicant’s view, the out-of-town appraisals should also have compared the applicants. According to the law, “outside comparative expert opinions” should be obtained. Obtaining “comparative” expert opinions means that the respective expert must first assess each candidate against the assessment criteria and then assess the candidates against each other.

The argument that there is no legal basis for personnel consultants commissioned by the university to conduct interviews with applicants is also unconvincing. With the exception of the obligation to obtain external and comparative expert opinions as stipulated in p. 5, Art. 18 (4) p. 5 BayHSchPG does not contain any further requirements as to which sources of knowledge the appointment committee has to base its decision on. It was therefore left to the dutiful discretion of the appointment committee to decide which sources it required in order to obtain a comprehensive picture of the group of applicants. For example, psychological reports, personality tests or similar could be carried out with the applicants.

It was not substantiated that the personnel appraisals would present a distorted picture of the applicants, since the number of competencies assessed differed depending on the personnel. According to the defendant’s submission, the relative strengths and weaknesses of the applicants presented were due to the fact that the entire personality was assessed in each case as part of the personnel appraisal. There is no legal objection to this.

What can the reader take away?

The decision shows that the bodies responsible for providing appointment proposals have discretion in shaping the decision-making process in the absence of explicit statutory requirements. This also means that the design of the decision-making process can only be reviewed by the administrative courts to a limited extent (cf. Section 114 VwGO).

The exercise of the Appeals Committee’s discretion may include, for example, declaring candidates only “provisionally” ineligible for listing, but still awaiting the out-of-state comparative reviews.

The use of external personnel consulting firms in the decision-making process can also be a permissible component of the decision-making process without requiring an explicit legal basis for this.

Since obtaining external and/or comparative expert opinions is also part of the appointment procedure for university professors in other federal states (cf. e.g. Sec. 38 (3) Sentence 2 HochschulG NRW, Sec. 13 BerufungsO Universität Hamburg), the present decision is also relevant there.

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