The new Berlin Higher Education Act, according to which certain scientific employees are to be given a permanent position after completing their doctorate, contradicts the freedom of science guaranteed in the Basic Law. This is the result of an expert opinion by the Scientific Parliamentary Service of the House of Representatives.
The regulation made in paragraph 110, paragraph 6, sentence 2 makes it “more difficult for the following years to find qualification positions because of the overall limited capacities of the universities,” says the report, which the lawyers in the House of Representatives prepared at the request of the CDU parliamentary group. This affects the “fluctuation of the scientific staff”.
The Parliamentary Service, which supports the House of Representatives from a legal point of view in particular in legislative processes, thus confirms the view that the permanent postdoc in Berlin threatens to clog up the academic system, which is geared towards permanent fluctuation in the non-professorial faculty, in the long term.
Although the regulation only applies to people with a doctorate who are qualifying for a professorship and whose positions are financed from university budgets, the Parliamentary Service still sees a critical number of people in the mid-level faculty affected.
The Berlin university management had criticized this from the beginning and the former president of the Humboldt University, Sabine Kunst, justified her resignation at the end of the year in October 2021. Shortly before, the amendment had been passed under the title “Act to Strengthen Berlin Science” with the votes of the then Red-Red-Green government coalition.
The violation of academic freedom is justified in the parliamentary report as follows: According to Article 5, Paragraph 3 of the Basic Law, the state “may not make any unjustified interventions in academic self-administration and teaching”. This also applies to “organizational regulations that structurally endanger free scientific activity”.
This is exactly the case, however, if the “education of young scientists” is impaired, in that future generations have fewer chances of vacant and, in turn, temporary positions. The Scientific Parliamentary Service relies on the Federal Constitutional Court.
Although labor courts usually decide differently, for them the education of young scientists does not constitute a reason for temporary employment. But the Federal Labor Court has determined that “the time limits would prevent the aging of the scientific mid-level faculty” – and the universities remain functional.
So there is a lot of momentum in these points for the CDU parliamentary group, which in the spring already filed a norm control complaint with the Berlin constitutional court on these issues. Especially since the parliament’s in-house lawyers also agree with those critics who doubt Berlin’s legislative competence for §110.
There are “considerable concerns about the responsibility of the state of Berlin,” according to the report: the federal government’s Science Time Contract Act (WissZeitVG) has priority. With the time limit regulations set out therein, the federal government wants to ensure “the ability of the universities to renew”, which the amendment to the Berlin Higher Education Act don’t consider.
Adrian Grasse, the CDU parliamentary group’s university policy spokesman, sees his positions as confirmed: “I didn’t expect the report to be so clear,” said Grasse in a statement for the Tagesspiegel. “It can be deduced that Berlin’s regulation of mandatory follow-up commitments for postdocs is inadmissibly interfering with the federal government’s legislative competence in labor law and the limitation of employment contracts.”
From Grasse’s point of view, the report also shows that the time limits on the positions are not arbitrary. Rather, it is necessary “so that the universities can continue to fulfill their task of promoting young talent”. Abolishing the fixed-term regulations would jeopardize the performance and competitiveness of the universities, explains Grasse.
In this respect, it is also not justified to accuse them of a “blockade attitude” against the new Berlin higher education law. “Red-Green-Red should see the report as a last warning shot to delete the paragraph and withdraw the change in the law in order to avert further damage to the science location,” said Grasse.
It is foreseeable that “otherwise the courts will do it,” explains the CDU MP, with a view to the norm control lawsuit, which is also represented by the FPD parliamentary group, and a lawsuit at the Federal Constitutional Court, the HU President Sabine Kunst in December 2021 shortly before she left submitted from office.
On other points, however, the Scientific Parliamentary Service does not agree with the opposition. The late amendment of the draft law, which only introduced the postdoc regulation at the last moment, does not constitute a violation of the constitution. The fact that only one reading of the amendment took place is sufficient, the requirement for two readings only refers to laws as a whole.
Paragraph 110 does not appear to violate the “internal appointment ban” either: the selection of the best anchored in the Basic Law cannot be fulfilled solely by publicly advertising vacancies, it is said. Similar to the tenure track for junior professorships, which are transferred to permanent professorships if the work is successful, the doctorate and contractual agreements on later qualifications, for example in teaching, should be regarded “as the equivalent of selecting the best”.
A constitutional report commissioned by the education and science trade union recently came to completely different conclusions. Among other things, Berlin’s legislative competence in labor law for the universities is very well seen in this.