Die »Entbeamtung« des Hochschullehrers als Teilprivatisierung der deutschen Universität? – Aktuelle Probleme des Art. 5 III und des Art. 33 IV GG

In Germany, professors are traditionally given the status of civil servants. However, it seems uncertain as to whether this rule (which knows only a few exceptions) will apply to professors in the future. There are increasing demands to discontinue giving professors civil servant status and to hire them as employees in the future.These demands are mainly based on (questionable) economical arguments. Employees are regarded as less expensive. From a legal point of view, it may remain open as to whether the financial calculations this assumption is based on, are correct. The question as to whether professors should be awarded civil servant status is primarily a constitutional issue.The status of professors is appointed by the German Federal States. In some states legislation as a rule, is based on the Civil Service status and only in exceptional cases are professors allowed to work as employees. Some states seem to regard both possibilities with equality and some even seem to turn the relationship of rule and exception upside down. All these solutions are compatible with the wording of the Federal Framework Legislation on the general principles governing higher education.The question is, however, whether Basic Law can allow the gradual abolition of the Civil Service status or whether this particular form of organizational privatisation conflicts with the Federal constitution.According to art. 33 (4) Basic Law the exercising of state authority as a permanent function has, as a rule, to be entrusted to those members in public service whose status, service and loyalty are governed by public law. This measure includes a functional reservation for civil servants. It is in dispute as to whether professors come within the scope of this measure. The fundamental question is, if or to what extent their job entails the »exercising of state authority«. The term is on the one hand not (or at least, no longer) limited to enforceable state intervention into personal freedom and on the other hand in a sense not every public function performed by the state is an exercise of state authority. The applicability of art. 33 (4) Basic Law is not dependable on the public or private form of the state's activity but requires its content to have a particular quality. This quality may be based on the importance the performance of the functions has in the citizens' use of their basic rights or on the fact that the use of civil servants prove appropriate for the functions performed. The preferable interpretation is that art. 33 (4) applies to the governmental performance of functions, the character and quality of which would change if performed by private (natural or legal) persons. At least functions that the state must not leave entirely to others (due to different reasons) belong to this sector.Professors set exams and decide on university acceptance. These decisions affect the students' basic rights – as does the teaching which determines the quality of education thereby influencing career opportunities. Furthermore, civil servants are not allowed to go on strike. Hence, their status guarantees stability which has found to be appropriate in the field of higher education. Finally and most important: The activity of a professor on a state university is of a particularly public nature and on behalf of the basic rights of the freedom of science, higher education must not be left entirely to private universities.The freedom of science guaranteed by art. 4 (3) Basic Law obliges the state to provide institutions for free science, consisting of research and teaching. Although there is no state monopoly on higher education in the legal sense, there is in fact an actual state monopoly. The private sector is unable to replace institutions provided by the state, to pay attention to independent research or to concern itself with the necessary teaching capacities. Art. 5 (3) Basic Law therefore forbids the state to withdraw from higher education. As a resu