Auflösung staatlicher Hochschulen in Nordrhein-Westfalen durch Eröffnung des Insolvenzverfahrens?
Abstract:In March 2006 the ministry responsible for institutions of higher education in the federal state of Northrhine-Westphalia, in terms of population largest member-state of the Federal Republic of Germany, published a ministerial draft bill for what it called a "law on university freedom". This neo-liberal draft bill was to be given a hearing before becoming a cabinet bill, and it proposed fundamental changes to the state's University Act, which is at present in force. Among the proposed changes is a radical one that is particularly significant because it introduces something completely new in legal policy within the Federal Republic of Germany. This is the intention to make possible the application of the federal Insolvency Act (formerly Bankruptcy Act) to the universities and universities of applied sciences in the state of Northrhine-Westphalia. These institutions have the status of legal entities under public law. Following such a change in the law, an ex lege dissolution of a university would be the consequence of either its assets being subjected to insolvency proceedings or of an application for such proceedings being refused on the grounds of insufficiency of funds.
This article, submitted as a manuscript for publication in mid-April 2006, examines whether this proposed change is in accordance with the requirements of constitutional law at the federal and state levels, and concludes that this is not the case on three counts. The first is that the appointment of an insolvency administrator would contravene the universities' right to self-government, which is guaranteed by the constitution. Furthermore, if the federal Insolvency Act were made applicable to universities but not to the many other legal entities under public law that are under the supervision of the state of Northrhine-Westphalia, this would violate the "unlawfulness of arbitrariness" principle, which derives from the rule of law. Finally, since the 1960s it has always been the practice in the state of Northrhine-Westphalia and in the Federal Republic as a whole for universities to be recognized or founded on the basis of parliamentary laws, and if the dissolution of a university were in future possible not only on the basis of a legislative actus contrarius but also as a result of judicial proceedings, this would be in conflict with the priority accorded under constitutional law to laws passed by parliament.
Following the hearing of the ministerial draft bill, the state of Northrhine-Westphalia has recently completely dropped its originally intention to apply the federal Insolvency Act to universities. This was done in late May 2006 in a cabinet bill.
Document Type: Research Article
Publication date: 2006-04-01
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