With the announcement of her resignation, the President of the Humboldt University (HU) zu Berlin, Sabine Kunst, achieved the intended effect: The amendment to the Berlin Higher Education Act, which came into force on September 25, is again up for discussion.

Specifically, it is about the extended term for postdocs.

So far, the university has been able to agree a permanent position with young scientists if they achieve their qualification goal; according to the new higher education law, they must do so.

However, Berlin lacks the legislative competence for such a regulation.

Heike Schmoll

Political correspondent in Berlin, responsible for the “educational worlds”.

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Similar to the rent cap, Berlin has overstepped its potential and obviously failed to make sense of the damage.

This is evidenced by a statement by the Berlin constitutional lawyer Matthias Ruffert, who considers Article 110 of the Berlin Higher Education Act to be unconstitutional.

Ruffert teaches public law and European law at the law faculty of the HU.

"Fixed-term employment contracts at universities are regulated by federal law in the Science Time Contract Act," says the statement.

Its aim was to "ensure the ability to renew the teaching and research carried out at the universities".

If every postdoctoral fellow were permanently employed, the ability to renew would be terminated in a very short time, and the status of excellence would be seriously jeopardized.

The number of limited-term scientists in Germany is 180,000 - a unique number in an international comparison.

Interference with federal law

Ruffert argues that enforcement of federal law would be adversely affected by the implementation of a “state regulation”. “The State of Berlin lacks the competence” for such a regulation because it contradicts the meaning of the federal legal provision. In the event of an admissible legal dispute before the Federal Constitutional Court, the regulation would not exist and would be declared null and void.

The Basic Law assigns legislative competence for labor law to the federal government as the subject of so-called competing legislation. In fact, Section 110 (6) sentence 2 BerlHG is a labor law regulation, not a university law regulation. This results not least from the reasoning in the legislative procedure, in which “good work” is the focus. Essentially, those would then have to be permanently employed who do not get a reputation from abroad.

In the area of ​​competing legislation, the state competence does not apply if the federal government makes use of its legislative power (blocking effect).

According to the case law of the Federal Constitutional Court, it is a clear indication that a provision under state law affects an area that the federal legislature has already regulated and thus activated the blocking effect if the state law regulation interferes with the enforcement of federal law and its regulatory objective can only be achieved to a limited extent .

According to the new Berlin Higher Education Act, new, even more productive staff could not be hired for qualification for years.

It depends on the Union

The federal government can submit a judicial review suit before the Federal Constitutional Court by a cabinet decision, a state government or a quarter of the members of the Bundestag. The first two options are ruled out; in the Bundestag the lawsuit against the University Act must find the support of the CDU / CSU parliamentary group. The parliamentary group leader Ralph Brinkhaus has promised to Berlin CDU MPs. "It is regrettable that our courts are needed again to put the red-red-green Senate in its place," complains the research policy spokesman for the CDU parliamentary group in the Berlin House of Representatives, Adrian Grasse, to the FAZ Den attempt, His parliamentary group criticized the amendment of the higher education law in an urgent procedure from the start."Senator for Science Müller therefore has to put up with the accusation of negligently jeopardizing the reputation of our excellence location," said Grasse.

The governing mayor and science senator Michael Müller is currently negotiating the coalition agreement for the future traffic light coalition in the federal government in the science working group.

In contrast to the judicial review complaint about the Berlin rent cover, which affected hundreds of thousands, the decision on the Berlin University Act could take a long time if it is not brought forward by the Federal Constitutional Court.