New report on the Higher Education Act: “Berlin post-doc regulation is in line with the law” – Knowledge

What the new Berlin Higher Education Act promises postdoctoral fellowship does not interfere with the federal government’s legislative competence or academic freedom. This is what the former judge in the Constitutional Court of the Brandenburg State, Rosemarie Will, states now, in a legal opinion commissioned by the Union of Education and Science in Berlin (GEW).

The report was presented to GEW Berlin on Friday afternoon. In it, Will, who was also a law professor at Humboldt University, and its co-author, attorney Michael Plose, came to a completely different conclusion from HU attorney Matthias Ruppert.

As legal representative for the CDU and FDP parliamentary groups in the House of Representatives, Ruppert recently announced a rate-control action against Article 110 of the Berlin Higher Education Act in the Constitutional Court of the Berlin State.

The controversial regulation stipulates that universities should generally give postdoctoral posts permanent positions if they have met the agreed qualification goals. Sabine Kunst, president of Humboldt University, resigned last year in protest of the condition, which she thought could not be enforced. Berlin’s new Science Senator Ulrike Gote (Greens) has now announced a repair amendment.

From the point of view of constitutional lawyer Rosemarie Will, there is apparently no reason for this. Its report states that the disputed paragraph 110 paragraph 6 “does not introduce any new regulations for fixed-term employees”. Rather, it is a “state law regulation of human resources in the university sector.” The state legislature has a constitutional responsibility for this.

Lawyer will: The temporary contract act allows for unlimited periods

HU attorney Matthias Ruppert, who had previously written an expert opinion for his university, recently stated about the planned rate control lawsuit: under labor law, the power of the Berlin Senate to set a term unlimited time for postdoctoral students “should be denied with great clarity.” The decisive factor here is the Federal Academic Contract Act, which explicitly does not provide for such continuity.

On behalf of GEW, Rosemarie Will is now arguing that Section 1 (2) of the Scientific Contract Act explicitly also permits the permanent employment of scientific staff.

The focus of the discussion is Humboldt University: Here the President resigned and here the experts taught.Photo: images imago / Joko

The legal obligation in BerlHG for an unlimited follow-up commitment after the completion of the postdoc qualification phase also leads to “entering into a new unlimited contract”, Will argues. It is not about terminating an existing contract with a fixed term.

The new permanent employment contract also serves “no longer for scientific qualification, but for the independent performance of permanent duties in teaching and research”. In general, it is “part of the federal state’s higher education law jurisdiction to dictate to universities how they should behave as employers,” Will said Friday.

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The freedom of science, which even opponents of university law see as endangered, also sees the protected will. It does not infringe on university autonomy when the legislature redesigns employment contracts. According to Will, there is “no formal obligation” linking universities to traditional structures.

GEW against “attempts to block reforms”

“The report is a clear signal to the coalition and the university management to continue on the path to more permanent prospects for highly qualified scientists in addition to the title of professor,” explained Martina Regulin, President of GEW Berlin. The staff structure of universities “with the stalemate of professors” has long been outdated and non-competitive internationally.

Regulin and also Andreas Keller, the federal vice president of GEW, called on the CDU and FDP to refrain from their rate control lawsuit. Humboldt University must also withdraw the appeal filed by Sabine Kunst in late 2021 as the final official act in the Federal Constitutional Court.

“These constitutional lawsuits are a transparent attempt to block the necessary personnel structure reforms through lengthy legal proceedings,” Regulin explained. Keller, on the other hand, hopes the Federal Constitutional Court will rule in the spirit of Will’s report. Then the Berlin law that paves the way for “permanent positions for permanent post-doctoral assignments”, will have a nationwide broadcast.

Meanwhile, Rosemarie Will also criticizes the change in the repair now planned by the Senate. The draft does not yet provide the necessary legal certainty and needs to be changed urgently. What is still missing is a statement on the future categories of staff and the financing of future positions by the state of Berlin.

So far, the draft essentially provides for newly hired postdoctoral fellowships, whose employment contracts contain qualification goals and are paid from the university’s fixed budget funds, to be offered permanent positions from September 2023 if they achieve these goals.

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