Rechtsnatur der Akkreditierungsentscheidungen / Prozessuale Fragen

This article analyses the legal status of accreditation decisions as well as issues relating to judicial review of a refusal to accredit or of a conditional accreditation. Its main conclusions are as follows. The accreditation of a study programme can properly be classified as an administrative order within the meaning of the Administrative Procedure Act(s) (VwVfG), s.35 cl.1. Whereas in accreditation proceedings relating to universities located in North-Rhine-Westphalia this state's Administrative Procedure Act applies, there is some doubt as to the applicable administrative procedural law in proceedings concerning universities from other states. This issue turns on whether the law of the university's home state expressly and in the manner required by the constitution of the university's home state provides that North-Rhine-Westphalian administrative procedural and organizational law is to apply. If there is no such provision, the home state's administrative law will apply. In cases originating from states where there still is a requirement of previous administrative appeal, there is some doubt as to which authority is competent to decide the appeal. When the law of the university's home state expressly provides for North-Rhine-Westphalian organizational law to apply in accreditation proceedings, the agency itself is the competent authority to decide the appeal. This probably also holds true in cases where there is no provision in the home state's law declaring North-Rhine-Westphalian organizational provisions to be applicable. More importantly, in the latter cases, any and all accreditation decisions are most probably unlawful on procedural grounds, since the agencies for reasons rooted in federalism almost certainly lack the required decision-making competence. The Administrative Court in whose district the aggrieved university is located is competent to decide any lawsuits relating to accreditation decisions. In order to safeguard the right to academic freedom (Basic Law, Art. 5 subs. 3), the power of the agencies to refuse an accreditation or to add conditions to an accreditation has to be limited to cases where a university's application is manifestly deficient on a major point. To rephrase this, a court will have to regard an agency's refusal of accreditation or addition of conditions as unlawful, where the agency has intrusively second-guessed the university's explanations on how to meet the quality standards, or where there are only minor deficiencies in the university's application.