Verfassungsrechtliche Aspekte des neuen Studienplatzvergaberechts

The university admission law is with the 7th HRG-amendment right back in the spotlight of scientific debate. Instead of the basic right guaranteeing university admission in favour of applicants, the debate is primary focusing at the competition between the universities and the strengthening of the respective university autonomy. Since the 7th HRG-amendment a federal standardised allocation procedure for university places is lacking. The new university admission law was applied for the first time in the winter semester 2005/2006. The federal states have adopted new, not anymore consistent regulations concerning the central allocation of university places without having amended the interstate treaty beforehand. They did not agree on a new interstate treaty until mid-2006 which entered into force as from the winter semester 2008/2009. The universities, which are now allowed, after deducting the preliminary rates to 60% of students admitted, to allocate their places on their own, have laid down in their respective ordinances, the criteria for their selection. While some ordinances take into account the high school grades of applicants as the only selective criteria, other ordinances contain a highly differentiated selection procedure. Thus, it cannot be talked of a federal standardised allocation procedure anymore. Similarly, the principle of free choice of the place of training is losing its actual meaning. Besides some formal aspects this essay is critical looking into material, in particular constitutional aspects of the current university admission law. Formally it elaborates that the universities' ordinances meet the limits of the universities' autonomy to enact ordinances. In material terms, the compatibility of the new university admission law with article 12 para. 1, article 3 para. 1 German Basic Law (GG) and the welfare state principle is explored by taking into account the numerus clausus jurisprudence of the Federal Constitutional Court. Therefore, the authors discuss in general the selection procedure regarding the aptitude of the students and in particular the other selection procedures. Additionally, the extraordinary difficulties of the individual applicants to obtain effective legal protection are described. The authors urge federation and federal states that created pursuant to the 7th HRG-amendment the new university admission law, to second-guess these provisions.