public management, such as a more entrepreneurial alignment of universities in single federal states of Germany (Hochschulfreiheitsgesetz NRW ) [8]. public management, such as a more entrepreneurial alignment of universities in single federal states of Germany (Hochschulfreiheitsgesetz NRW ) [12]. Nordrhein-Westfalen: Hochschulfreiheitsgesetz (HFG) vom (GVBl. , consulted.

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Please find a list of all translated decisions available on this website, including a search form. These judicial review proceedings concern provisions of Land law which govern the accreditation of study programmes.

An accreditation agency — the defendant in the initial proceedings — refused to accredit two study programmes offered by a private university of applied sciences Fachhochschule. The referring Administrative Court considers the Land law upon which this refusal was based to be unconstitutional. The request for judicial review concerns the accreditation of study programmes offered by higher education institutions hochschulfreiiheitsgesetz are not under the responsibility of the Land, i.

The process starts with the selection of an agency by the higher education hochschulfreiheitsgeseyz, its application for accreditation, and an agreement on the procedure and costs; after that, the higher education institution submits a comprehensive self-documentation.

The agency organises a group for the evaluation, which prepares an expert opinion after an on-site visit. Generally, the programme accreditation is subject to various requirements. Inthe KMK agreed to transform the accreditation council into a public law hochschulfrdiheitsgesetz with legal capacity under the law of the Land North Rhine-Westphalia.

As hochschhulfreiheitsgesetz central organ of the foundation, the accreditation council issues the essential rules for the accreditation of study programmes. The Act does not specify details in that respect.

The council also accredits or re-accredits the accreditation agencies, which in turn develop their own accreditation requirements. In the initial proceedings, the parties hochschulfreihektsgesetz in dispute as to whether it was lawful for the defendant, an accreditation agency, to refuse the accreditation of two study programmes offered by the claimant, a private university of applied sciences.

The claimant in the initial proceedings is a private university of applied sciences, S… gGmbH. It was founded and recognised as a higher education institution by the state in The defendant agency in the initial proceedings is A… e.

It is financed and controlled by higher education institutions, business associations, expert and professional associations, as well as social-partnership organisations; the agency itself was hochschulfreiheitsgeseyz accredited in December and re-accredited in June Prior to this, the university of applied sciences had commissioned the accreditation agency […] to re-accredit the study programmes. The managing director of the accreditation agency notified the university of applied sciences [ The Administrative Court refused […] to grant a preliminary injunction.


In proceedings pursuant to Art. The referring court must comprehensibly and verifiably substantiate that the validity of the legal provision is material to hovhschulfreiheitsgesetz outcome of its pending decision, and set out the arguments why the court believes the legal provision to be incompatible with the Constitution cf. These requirements are satisfied in the case at hand.

Without an adequate legal basis it would not be possible to presume an obligation on the part of hochschulffeiheitsgesetz defendant accreditation agency to take the administrative decision [on re-accreditation] or to render a new decision. Conversely, if hochschulfreeiheitsgesetz legal basis were held to be constitutional, the hocshchulfreiheitsgesetz in the initial proceedings would be successful to the extent that — despite the principal motion being dismissed — the court would have to conclude that the decision of the agency of 14 April was unlawful.

The fact that the challenged statute is no longer in effect does not hochscnulfreiheitsgesetz the admissibility of the referred question. The hochschulfreiheitsgeesetz provisions continue to have legal effects which are material to the decision in the proceedings pending before the regular court cf. The referral is well-founded. There are no objections to the formal constitutionality of the referred provisions. However, the referred provisions fail to satisfy the substantive requirements of Art.

The accreditation of study programmes involves serious interferences with the freedom of research and teaching.

In this respect, the referred provisions do not meet the [constitutional] requirement that interferences with fundamental rights be based on a statutory provision Gesetzesvorbehalt ; rather, the legislature leaves the decision on applicable standards for the accreditation of study programmes at higher education institutions largely up to other actors, without setting out the necessary statutory requirements.

The requirement that study programmes at higher education institutions be accredited bears on the scope of protection of Art.

This scope of protection covers the university of applied sciences as a private higher education institution and is affected by procedures involving the evaluation of academic teaching. This means that private higher education institutions, such as the university of applied sciences, its sub-divisions and members, may invoke Art. This fundamental right guarantees a sphere of freedom to academics protecting them from any exertion of influence by the state on the processes of gaining and imparting academic knowledge cf.

In particular, this includes the independent determination of the content, organisation and methodical approach of teaching cf.


Just as it does not guarantee the existence of a particular research or teaching institution as such cf. The indirect obligation to have study programmes accredited, implicit in the referred provisions, constitutes a serious interference with the freedom of research and teaching. In practice, however, the requirement of state recognition […] essentially compels private higher education institutions to have their study programmes accredited, if they want to be recognised by the state.

Moreover, […] the eligibility for potential state subsidies hinges upon state recognition.

Wie das Hochschulfreiheitsgesetz Hochschulen noch freier machen könnte

In addition, accreditation is indispensable if university education offered by private higher educations is to be recognised in the labour market. Thus, the legislature has made accreditation a prerequisite for state recognition.

This in itself interferes with the freedom of science, research and teaching. The decisive factor is that, in practice, the legislature essentially made accreditation mandatory. The prerequisite that accreditation be obtained also interferes with the rights of teaching staff, and of faculties or departments. Although the decision on recognition, like the decision of the accreditation agencies, is directed at the higher education institution as such, it nevertheless also involves an external evaluation of study programmes with regard to their content and educational and instructional approach.

The evaluation also relates to the competence of teaching staff, who are thus held accountable by an external institution that is not part of their higher education institution.

In practice, this meant that [staff and other members of the higher education institution] were essentially obligated to participate in the process of accreditation.

The evaluation covers the concept and organisation of the study programme [ The accreditation requirement constitutes complete preventive monitoring, which must be renewed regularly, due to the generally applicable time limits [ This monitoring is of considerable importance, because under [the Land law], compliance is a prerequisite for state recognition; [ The Land courts of audit estimate that the regular burden of payments from higher education institutions to the agencies amounts to a sum of between EUR 10, to EUR 15, per study programme [ By way of accreditation, the legislature does not merely define the formal structures for the organisation of academic teaching.

This directly affects the general and the teaching-related organisational autonomy of higher education institutions, also with regard to their budgets. The agencies further set requirements concerning the proportional composition of curricula, as well as study and examination regulations, and make recommendations with regard to areas of specialisation and course modules [ While no specific results nor interpretations of academic findings are prescribed, the review is by no means limited to merely assessing the coherence of the teaching objectives with the qualification objectives, or the manner in which the imparting of academic knowledge is organised, either.

The accreditation instead directly affects the structure and content of academic teaching. This interference with the freedom of research and teaching is not justifiable under constitutional law. A simple reference to the Europeanisation of the higher education area is, from the outset, unsuitable for providing a basis for justification see below a. While it may be permissible to restrict the freedom of research and teaching in order to ensure the quality of teaching see below bthe legislature itself must determine those issues relating to quality assurance that are considered essential under constitutional law see below c ; this standard was not met in the case at hand see below d.

EconPapers: Wie das Hochschulfreiheitsgesetz Hochschulen noch freier machen könnte

It is true that the accreditation system under German law also implements European agreements. However, the European Union does not have the competence to harmonise teaching at higher education institutions cf.

The Bologna Declaration on the European Higher Education Area is a mere measure of cooperation to pursue European objectives in the education sector. Ensuring the ngw of academic teaching is one such aim.

Research and teaching is, in principle, an area of autonomous responsibility free from external control; this is because the academic sphere can best fulfil its role if it is free from considerations of its social usefulness or its political expediency cf.

However, higher education is also closely connected to the right to freedom of occupation as set out hochschulfreiheitstesetz Art. Accordingly, academic teaching must take into account the purpose of professional training and the related fundamental rights of students cf. Thus, the fundamental right to freedom of research and teaching does not stand in the way of requirements to ensure proper academic teaching cf.

Measures to ensure the quality of teaching that satisfy academic standards also serve to ensure that higher education institutions fulfil their functions. Thus, these also benefit the freedom of research and teaching guaranteed in Art. The rule of law and the principle of democracy require the legislature itself to enact provisions that are essential for the realisation of fundamental rights hochschulfrelheitsgesetz this regard cf. The determination of what is essential derives from the key principles of the Basic Law, and most notably from the fundamental rights enshrined therein.

The extent hochschulfreiheirsgesetz which the legislature must itself set down the essential legal rules for a particular area of human activity that is protected by the Constitution, depends on the subject matter and its specific characteristics cf.


Rather, any criteria for evaluating the quality of research and teaching to which the legislature attaches consequences must leave room for research and teaching to determine its own focus and orientation autonomously cf. Thus, within systems of quality assurance, the legislature must at least establish procedural and organisational safeguards to protect the freedom of research and teaching: This guarantee protects against academically inadequate decisions that are taken by actors from within higher education institutions, as well as by third parties that have been granted decision-making powers within the academic system cf.

Thus, with hochschulfreiheitwgesetz to assessment decisions concerning fundamental rights, the legislature must determine by whom these decisions are to hochschilfreiheitsgesetz taken and what the relevant procedure will be cf. With respect to quality assurance hochschlfreiheitsgesetz higher education, the legislature must also establish a comprehensive structure in which decision-making powers and participation rights, influence, information and monitoring, are designed in a manner that avoids jeopardising free academic teaching cf.

In order to avoid potential external control that would be academically inadequate, sufficient participation by academics is indispensable, especially in the process of determining evaluation criteria. This applies all the more where evaluation criteria are set by actors outside the higher education institutions, as this increases the risk that academic concerns are disregarded, and where the members of higher education institutions are dependent on the external evaluation.

It is necessary to ensure that consideration is given to the fact that criteria may, and in some cases must, vary in respect of different disciplines cf. Likewise, it must be ensured that the criteria chosen are sufficiently open — e. At the time, it was found that the legislature could, within its margin of appreciation and prognosis, establish a model under which the evaluation criteria were not determined by the legislature itself nor by external actors, but were rather left to an internal process within higher education institutions subject to the requirement that academia itself be sufficiently involved cf.

A higher education degree can only enable access to professions if the degree programme confers specific qualifications, if potential employers recognise its quality, and if the degree can be compared with other degrees on the labour market.

It is thus not objectionable that the system of quality assurance of degree programmes at higher education institutions is designed taking into account research findings, and also taking into account the potential usefulness of acquired knowledge and skills for the labour market, in order to promote the constitutionally protected freedom of occupation in Art.

This justifies the decision to base accreditation primarily on an evaluation carried out by experts of the respective academic field, in a peer review process; it is the ability of academia to largely ensure quality on its own that warrants its involvement in the process.

In addition, it is, however also legitimate to involve practitioners in the process of accrediting study programmes. Furthermore, a general requirement to evaluate study programmes in terms of measures taken to promote equal opportunities for men and women as well as in terms of other structural disadvantages and measures to compensate disadvantages of students with disabilities, serves to fulfil the guarantees of Art.

In view of the present-day internationalisation of labour markets and of research and teaching, the legislature may also require the accreditation process to evaluate the international comparability of study programmes, provided that other criteria do not supersede the relevant discipline-specific academic criteria. This does not exceed the margin of appreciation and prognosis granted to hochschulfreiheitsgestez legislature in determining necessity cf.

Admittedly, less-restrictive means would be available, in form of a review limited to formal compliance with relevant standards or as a review limited to plausibility and evident errors in the self-documentation submitted by higher education institutions. However, the Constitution does not prohibit external measures of quality assurance of academic teaching in addition to regular legal supervision. Likewise, neither an obligation to cooperate imposed upon members of higher education institutions, [ This lack is not compensated [by other provisions elsewhere] [ In particular, there is a lack of sufficient participation by academics in the accreditation process itself 3.

This does not satisfy the requirements of the essential-matters doctrine Wesentlichkeitsvorbehalt for justifying a restriction of the freedom of research and teaching. This generic hochschulfreiueitsgesetz unspecific reference does not allow those subject to hocschulfreiheitsgesetz law to deduce from the legal provisions the intensity of the interference with their fundamental rights.

Nor does the statement that accreditation be carried out by hochschullfreiheitsgesetz which are themselves accredited suffice to legitimise a process of recognising private higher education institutions imposed by the state and carried out within a largely external and far-reaching system of quality assurance.