The First Senate of the Federal Constitutional Court upheld the complaint of seven former East German Professors, who had remained in the same conditions of employment after the German reunification, but reduced to the rank of ‘academic assistant’ (wissenschaftlicher Mitarbeiter), thus reducing their membership rights in the decision-making of academic institutions. This was not permitted where their personal suitability and professional qualifications had been established, and where they continued to undertake the work of a Professor. The First Senate therefore held the education statute of the Federal State of Sachsen-Anhalt, which came into force on 13 October 1993, to be unconstitutional.

The seven complainants are employed in the higher education institutions of the Federal State of Sachsen-Anhalt. They were not taken on as Professors after the reunification, despite all having the relevant qualifications (other than one exception). The complainants challenged paragraph 118 (4) of the Sachsen-Anhalt education statute, which states:

"Professors under the previous law belong by virtue of this statute to the group of academic assistants. They …can apply to the relevant academic institution by 31 October 1994 at the latest, …to be taken on as Professors or in a similar position, if…"

In being assigned to the group of academic assistants, the influence of the complainants in the self-administration of their respective academic institutions was greatly reduced. Although academic assistants have a vote in most matters of the self-administration regime, only Professors have a vote in decisions on research and on the appointment of other Professors. The complainants claimed that the statute assigning them to the group of academic assistants thus breached the freedom of education guaranteed by Article 5(3) of the Constitution.

The First Senate agreed with complainants, explaining that the higher status of Professors in education required that they exercise a greater influence over decisions, following Article 5(3) and the general principle of equality in Art 3 (1) of the Constitution. The importance stemmed not from meeting the formal requirements of being a Professor, but rather the material requirements. It was clear that the complainants had the relevant qualifications and continued to act as Professors in the material sense, and therefore had the right to a greater influence on decisions.

The formal requirement of the statute for the former Professors to reapply for the post of Professor was a restriction of their constitutional rights which lacked any legitimate justification.

Press Release 40/97 of 7 May 1997

Decision of 26 February 1997 – 1 BvR 1864/94 and 1 BvR 1102/95

(English Abstract by David Thorneloe)