05.06.2020 | KPMG Law Insights

VGH Mannheim

VGH Mannheim: May a professor permanently demand from the university the same endowment with increased personnel and material resources that was allocated to him on a one-time and temporary basis in order to persuade him to remain at the university?

The question of whether one-time commitments fall within the scope of § 48 para. 4 sentence 3 LHG and establish a possible claim of the university teacher to a decision of the university on the reallocation of resources that is free of discretionary error, is the subject of the most recent decision of the Administrative Court of Mannheim. In short, it’s about the reach of lead offers.

What was it about?

In the course of the appeal proceedings, the Mannheim Administrative Court dealt with the following case:

The plaintiff was appointed W3 professor of theoretical physics at the defendant in April 2007. He seeks continued endowment of his chair based on a “retention offer” from the defendant.

In October 2009, the plaintiff submitted a concept paper with his demands and attached to this letter the personnel and material resources offered to him therein. Following discussions of the plaintiff with the rector of the defendant as well as the dean of the physical university on 09.12.2009, the rector submitted a written “offer to stay” to the plaintiff under 23.12.2009. In it, he stated at the outset that the Rectorate had discussed the plaintiff’s equipment and salary requests and that he was pleased to be able to commit the resources referred to in the letter “in accordance with Section 48(5) of the State Higher Education Act.”

In a letter dated January 20, 2010, the rector clarified the “offer to remain” of December 23, 2009, in response to a letter from the plaintiff dated December 31, 2009, to the effect that the increase in the allocation of academic positions from the previous 2.0 positions to up to 3.0 positions in the future would not have a detrimental effect with regard to the auxiliary staff funds for the professorship. The plaintiff accepted the “improved offer” by letter dated February 2, 2010; in the following five years, he then received the funds promised to him as agreed.

In the subsequent proceedings concerning the reallocation of resources, the Rector informed the Rectorate in the meeting of 29.04.2015 that he had examined the plaintiff’s application and had come to the conclusion that it was a case in which “without detailed substantive Rectorate treatment” the personnel and material resources provided so far could be reallocated in unchanged amounts for a further five years or – should this case occur earlier – until the plaintiff reached regular retirement. The rector informed the plaintiff about this decision by letter dated 29.04.2015. In addition, he pointed out to him that the new five-year time limit for the resource commitment ends on 01.02.2020.

The plaintiff objected to the decision of the Rectorate by letters dated 03.07.2015 and 24.11.2016. The rector rejected the plaintiff’s objection in an objection notice dated 03.04.2017. In its administrative practices, the defendant generally distinguishes between resources granted on a one-time and/or temporary basis, as opposed to ongoing, in its bids.

In his action filed on May 3, 2017, the plaintiff pursued his reallocation request with regard to the cost items “personnel funds for five years to the extent of half an E13 position,” “one-time material funds (EUR 25,000),” “office equipment/IT equipment (EUR 50,000),” and “rooms/renovation/furnishings (EUR 20,000).” In its judgment of July 18, 2018, the Administrative Court of Freiburg, while annulling its decision of April 29, 2015 and its notice of opposition of April 3, 2017, obliged the defendant to decide again on the approval of the four cost items in question, taking into account the legal opinion of the court, and dismissed the action for the rest. Against the judgment delivered on 07.08.2018, the defendant filed on 22.08.2018 the appeal admitted by the Administrative Court and substantiated it. The four items of equipment at issue had been granted to the plaintiff as one-time financial resources in the course of the negotiations on the right to remain and had therefore not been subject to the test for reallocation after five years from the outset.

In support of his cross-appeal, the plaintiff submits that, pursuant to Sec. 48 para. 4 sentence 3 LHG a right to a discretionary decision on the funds to be granted again. The wording of the standard, with the chosen generic term of “equipment,” refers to both basic equipment and one-time payments. The systematic position also speaks in favor of a uniform assessment of the term “equipment”. Both in § 48 para. 4 sentence 1 LHG as well as in § 48 para. 4 sentence 3 LHG contains the identical wording. This clearly shows the legislator’s intention to use a uniform term. A lack of flexibility for the universities is not to be feared, he said.

What was the decision of the VGH?

The main result of the dispute: § 48 para. 4 sentence 3 LHG does not establish a claim for reallocation of resources, regardless of whether appointment agreements and equipment commitments – qualify as assurances within the meaning of § 38 LVwVfG or public law contracts pursuant to §§ 54 et seq. LVwVfG – are to be qualified

After examining the factual and legal situation, the Senate of the Administrative Court came to the conclusion that the plaintiff’s cross-appeal should be rejected. The Administrative Court of Freiburg had correctly assumed that the plaintiff had no claim – pursued with the main application – to the further endowment of his chair that was the subject of the dispute. In particular, such a claim does not arise from the defendant’s “offer to remain” of December 23, 2009, as amended on January 20, 2010.

In the reasons for its decision, the Administrative Court pointed out that the question of the legal nature of appeal agreements and equipment commitments – as an assurance within the meaning of Section 38 LVwVfG or a contract under public law pursuant to Sections 54 et seq. LVwVfG – has not been conclusively clarified in case law.

A claim cannot be derived from the defendant’s “offer to remain” for the very reason that its “term has expired”. An interpretation of the “offer to remain” shows that the plaintiff’s claims were only to be established for a maximum period of five years after conclusion of the agreement or entry into force of the commitment. The content of both an administrative act and a contract under public law is to be determined by interpretation in accordance with the principles generally applicable to declarations of intent pursuant to Sections 133 and 157 of the German Civil Code. In this context, the declared intention is decisive, as the recipient could understand it from his point of view when objectively assessing it. Measured against these principles, the defendant had not wanted to commit itself for longer than a maximum period of five years. This could already be inferred from the introductory reference to the commitment “pursuant to Section 48 (5) of the State Higher Education Act”, which concerned all cost items. Thus, § 48 para. 5 of the State University Act of 01.01.2005 in the then valid version of 03.12.2008 – LHG a.F. – referred to.

Furthermore, the plaintiff could not derive a claim to further endowment of his chair either from the Land Higher Education Act, which does not contain a corresponding basis for a claim, or directly from the freedom of science under Article 5 (3) sentence 1 of the Basic Law. The freedom of science as a (derivative) claim to participation in the distribution of state funds only secures for the individual university teacher the allocation of a basic or minimum endowment, which ensures that he or she is put in a position to conduct scientific research and teaching at all.

In accordance with Section 48 (1) of the German Civil Code, which is the sole basis for the claim for a new assessment, the following provisions apply. 4 sentence 3 LHG n.F. (§ 48 para. 5 sentence 3 LHG a.F.), the commitments regarding the personnel and material equipment of the areas of responsibility of professors in the context of appointment and retention negotiations are to be limited to a maximum of five years and are to be reviewed by the university in each case after the expiry of five further years with regard to the requirements of § 13 para. 2 LHG to be reviewed. Already the wording of § 48 para. 4 sentence 3 LHG suggests that the “review obligation” – corresponding to a subjective right of the chair holder – cannot refer to one-time commitments. This resulted from the fact that the provision cumulatively standardized the requirement of a time limit of a maximum of five years and a right to review after five “further” years. However, by making a one-time commitment, which could also refer to a temporary benefit, the university was clearly indicating that the beneficiary could not derive any further-reaching claims for the future from it. In such a case, there is therefore also no room for the university’s obligation to review after the expiry of the fixed-term period, as required by the provision. Since, according to all of the above, the defendant had only promised the further cost items once in its “offer to remain”, it had to take these into account when making the reallocation decision pursuant to Section 48 (1). 4 sentence 3 LHG may be disregarded.


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