(Jan. 16, 2018) On December 19, 2017, the German Federal Constitutional Court (Bundesverfassungsgericht, BVerfG) held that the federal framework and state implementing provisions regulating university admissions for medical studies at Germany’s public universities are partially incompatible with the German Basic Law, the country’s Constitution. The Court stated that the provisions infringe the applicants’ constitutional right to equal participation in study programs offered at public universities. (BVerfG, Dec. 19, 2017, Docket No. 1 BvL 3/14, BVerfG website (in German); Press Release No. 112/2017, Federal Constitutional Court, Legal Provisions of the Federation and the Laender Relating to University Admissions to Medical Studies Are Partly Incompatible with the Basic Law (Dec. 19, 2017), BVerfG website; Basic Law for the Federal Republic of Germany (May 23, 1949), BUNDESGESETZBLATT [BGBl.] [FEDERAL LAW GAZETTE] I at 1, as amended, art. 12, ¶ 1, sentence 1 in conjunction with art. 3, ¶ 1, GERMAN LAWS ONLINE (unofficial English translation).)
The unconstitutional provisions will remain in force until new provisions have been enacted. The Court set a deadline of December 31, 2019, for the legislature. (BVerfG, 1 BvL 3/14, at para. 253.)
Facts of the Case
The rules for university admissions for studies at public universities in Germany can be found in the Federal Framework Act for Higher Education and in the state laws ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. The states also authorized the public universities to enact rules to regulate their internal admission procedures. (Id. at 4; Hochschulrahmengesetz [HRG] [Framework Act for Higher Education], Jan. 19, 1999, BGBl. I at 18, as amended, GERMAN LAWS ONLINE; Staatsvertrag über die Errichtung einer gemeinsamen Einrichtung für Hochschulzulassung [State Treaty on the Establishment of a Joint Center for University Admissions], June 5, 2008, GESETZ- UND VERORDNUNGSBLATT NORDRHEIN-WESTFALEN [GV. NRW.] [STATE GAZETTE OF LAWS AND ORDINANCES FOR NORTH RHINE-WESTPHALIA] at 710, annex.)
The Federal Framework Act for Higher Education provides that every German who fulfills the requirements to study at a university, meaning everyone who has successfully graduated from high school (Abitur), is entitled to pursue the university studies of his or her choice. (HRG § 27.) The states and the universities are obligated to develop common criteria to determine the number of available admission spots and the maximum number of students that each university may admit in a given year if it seems likely that not all applicants will receive a spot. In cases in which several universities have established maximum admission numbers, the spots for that course of study will be distributed by the Joint Center for University Admissions. (Id. §§ 30, 31.)
The admission to medical studies at German public universities is restricted nationwide because there are generally more applicants than admission spots. Up to 30% of the spots are reserved for specific applicant groups—for example, applicants for whom a rejection would constitute extreme hardship, in particular, social hardship; applicants who are from a foreign country or are stateless; and applicants who have already completed another course of study, among others. (Id. § 32, ¶ 2; BVerfG, 1 BvL 3/14, at 13.) The rules provide that for the remaining spots, 20% will be allocated on the basis of high school final examination grades, 60% on university-specific admission criteria, and 20% on elapsed waiting time since high school graduation. (HRG, § 32, ¶ 3.) The Federal Framework Act for Higher Education provides a nonexhaustive list of criteria that universities must take into account, but requires that the final high school examination grade have “significant influence” on the admission decision. (Id. § 32, ¶ 3, no. 3.) Some of the state laws that implement and further define the selection criteria provide exhaustive lists for the universities to take into account when making the admission decision, whereas other state laws leave it up to the universities to define additional criteria. (BVerfG, 1 BvL 3/14, at 28–36.)
Applicants must submit a ranking of their preferred universities with their application to the Joint Center for University Admissions. The State Treaty limits that number to six. (Id. at 22.) Location preference is one criterion that has been frequently used by the universities in making their selections. For the winter semester of 2017/2018, fifteen universities considered applications only from students who ranked those universities as a first choice, four other universities chose location preference as the most or second-most important criterion, and another four universities selected location preference as the most, second-, or third-most important criterion. (Id. at 18.)
The constitutional complaint was submitted to the Federal Constitutional Court by the Administrative Court of Gelsenkirchen, which has two pending cases from students who have been denied admission to study medicine. The Administrative Court of Gelsenkirchen stayed the two proceedings and asked the Federal Constitutional Court to rule on the constitutionality of the admission criteria as codified in the Federal Framework Act for Higher Education and in the state provisions ratifying and implementing the State Treaty on the Establishment of a Joint Center for University Admissions. (Id. at 49.)
Decision
The Federal Constitutional Court held that the legal provisions on university admissions to medical studies are unconstitutional to the extent that they
- allow universities to autonomously define further selection criteria;
- do not ensure that the university-specific admission procedures are conducted in a standardized and structured manner;
- allow the universities to use location preference as an additional criterion in their admission procedure without any restrictions;
- do not provide a balancing mechanism for rendering high school graduation grades from different German states sufficiently comparable in university admissions procedures; and
- do not require universities to consider at least one additional selection criterion as equally important as the high school examination grade. (Id. at 246.)
The Court stated that everyone who fulfills the general admission criteria has a constitutional right to equal participation in study programs offered at public universities. However, it reiterated that this right exists only within the framework of actually available education capacities and does not obligate the government to create additional capacities to accommodate everyone. (Id. at 105 & 106.) It explained that particularly for popular programs of study like medicine, this might result in not everyone actually receiving a spot at a university. (Id. at 106.)
The Court explained that in cases in which there are not enough places for all applicants, the selection must generally be based on aptitude. (Id. at 108.) It held that there are no constitutionally required criteria to assess aptitude, but that the admission criteria have to be transparent and predictable. (Id. at 113 & 114.)
The Court held that basing the admission decision for 20% of the available places on the high school examination grade is constitutionally unobjectionable. (Id. at 127.) However, it stated that it is unconstitutional if within that context priority is given to candidates on the basis of their location preference, thereby “devaluing” the high school examination grade and replacing it with location preference. In the opinion of the Court, location preference can be used only as a secondary criterion. (Id. at 136 & 137.) Furthermore, it ruled that the number of location preferences cannot be limited. (Id. at 138.)
Lastly, the Court stated that allocating places according to waiting time was constitutional, but that the number cannot be higher than the current 20%. (Id. at 221.) However, it held that not limiting the waiting time was unconstitutional, because “waiting too long substantially impairs the chances of success in studies and therefore the possibility to actually choose one’s profession.” (Id. at 223 & 224.)