Examination law (Germany)

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Examination right is the designation for the law applicable to examinations - here: the determination of performance and knowledge of people, not for example book, balance sheet or material audits . In Germany, the right to examinations relates exclusively to job-related examinations , i.e. examinations that are necessary for taking up or practicing a particular profession, but also examinations and evaluations that influence the competition with other applicants for a position or the income that can be achieved the grade). Since the right to examinations is assigned to administrative and constitutional law, it normally only relates to state or statutory examinations. All university exams and other exams in the field of vocational training are unproblematic. Contrary to the widespread opinion at universities, the doctorate and the habilitation are also job-related examinations to which the examination law applies, and not, for example, a legally unregulated award of a dignity as before the Basic Law came into force. The right to take examinations does not automatically apply to exams in schools. While the job-related aspect predominates in the Abitur examinations and the examination law has also been applied in case law, competition takes a back seat to the educational aspect, especially with younger students, which is why the examination law can only be applied to a limited extent or no longer.

Basically, the examiner must be neutral and impartial about the test result. He must therefore not have any legal interests of his own, which is why the examiner cannot invoke the right to examine in his favor. In principle, the examiner has no legal position in the exam, nor is he entitled to work as an examiner. In terms of examination law, the candidate and the examination authority face each other. The activity as an examiner is not subject to the freedom of research and teaching .

The "old" examination law until 1991

Until 1991, the "old" examination law was in effect, which actually did not deserve this name. The prevailing opinion was that the auditor had an almost limitless and legally not verifiable margin of appreciation, which ultimately allowed and caused excessive arbitrariness. Practically only errors in the external examination procedure (disturbances, noise, tasks not properly distributed, etc.) and very gross, almost obvious evaluation errors were open to legal action. In effect, however, it was largely left to the discretion of the auditor how and according to which criteria he assessed and what he believed to be wrong and right at will. This view has a long tradition and is closely linked to the development and history of universities.

Many universities and examiners orientate themselves more strongly towards tradition than towards applicable law and are still connected to this view today. It is still formative for the self-image and the professional view of many university lecturers.

Historically, this is probably due to the fact that in the past, students had to pay the examiners directly for the examination:

“The officials in feudalism and then well into the 19th century lived on so-called sports. This is remuneration in cash or in kind that the civil servant received as a recipient of a service. Prussian professors, for example, could expect that after their exams, students would thank them with geese or other delicacies. ”(Erwin K. Scheuch ( Lit .: von Arnim, 2003))

By the way, demanding or accepting advantages for the examination evaluation is now considered a criminal offense of corruption.

The "new" examination law since 1991

The upheaval in examination law occurred primarily through the two resolutions of the Federal Constitutional Court of April 17, 1991, with which essential features of the previous practice were classified as unconstitutional, and the subsequent case law of the administrative courts . Requirements for the right to examinations were derived from the basic rights of occupational freedom ( Article 12, Paragraph 1 of the Basic Law ) and the guarantee of legal recourse ( Article 19, Paragraph 4 of the Basic Law) and thus reformed. Because job-related examinations fundamentally encroach on professional freedom, they must be measured against the Basic Law. The examinee as the holder of fundamental rights must have an effective legal recourse against all encroachments on fundamental rights. The auditor is also subject to the rule of law.

The case law on this is too extensive to be presented here. Reference is made to the literature for this. However, the essential core principles of the new examination law are:

  • The performance requirements in such a test and the standards according to which the services provided are to be assessed require a legal basis; the type and amount of the examination barrier must not be unsuitable, unnecessary or unreasonable.
  • Of Art. 12 para. 1 GG is obtained for job-related tests of the general valuation principle that a reasonable and logical reasoned with weighty arguments solution should not be regarded as wrong. Correct answers and usable solutions should in principle not be assessed as wrong and lead to failure. In jurisprudence and literature this is abbreviated but appropriately accepted as correct and not considered incorrect .
  • The examiner must justify his assessment in a comprehensible manner. The examinee has access to files.
  • Technical errors by the auditor are fully subject to review by the administrative court.
  • The examiner must not miss anything that was not required in the task. He is not allowed to evaluate what does not allow any conclusions to be drawn about the skills to be determined by the examination.
  • Finally, the examiner has a certain amount of discretion, which is naturally withdrawn from the review by the court. This leeway is only given to him when the performance assessment and the technical classification have been made without errors. Only when the examiner has fully taken note of the examination performance, its justifiability (strictly speaking, it does not even have to be "correct" in the actual sense, but only justifiable and consistent, even pure consequential errors after initially setting the wrong course may not be rated as wrong) correctly classified, opens up his room for assessment, which is based on his experience as a benchmark and which is beyond judicial control.
  • To compensate for this, the examinee has been given a margin of maneuver that the examiner has to respect. The examinee may have his own opinion. It must not be considered incorrect simply because the examiners disagree. Examinations must be designed in such a way that the examinee can express his own opinion that deviates from that of the examiner. An examination performance may not be rated as wrong simply because it deviates from the sample solution or because, for example, English instead of German technical terms were used.
  • Because the guarantee of legal recourse does not tolerate any loopholes, a second legal remedy has been put in place alongside the legal recourse via the administrative courts, namely the reconsideration procedure , in which the candidate can raise technical objections to the assessment. The auditor must deal with and deal with these objections, provided they are specific and substantiated. If they are eligible, he must improve his rating accordingly. He cannot change to another reason. If the objections are specific and substantiated and the examiner ignores the objections, the examination assessment is incorrect and should be revoked.
  • The principle of equal opportunities applies to a large extent. For comparable test objects, comparable requirements must apply. The assessment of an examination performance must be in relation to other assessments of the same examination. This principle also results in the prohibition of deterioration: the candidate's legal remedy cannot lead to a lower grade, so there is no risk in the assessment. However, it also follows from this that the examinee must not gain any advantage over other examinees: The examinee cannot initially accept a deficiency in the examination and then, if the grade is bad, take action against it in order to gain a second chance. Defects must therefore be reported immediately in order to give the examination authority the opportunity to remedy them.
  • Only the examiner himself may evaluate. An examination evaluation is incorrect if someone who is not part of the examination board took part in it.

Applicable law

Basic Law

The most important legal norm to be applied is the Basic Law , namely the freedom of occupation

Article 12, Paragraph 1 of the Basic Law: All Germans have the right to freely choose their profession, workplace and training facility. The practice of the profession can be regulated by a law or on the basis of a law.

and the legal recourse guarantee

Article 19, Paragraph 4 of the Basic Law: If someone's rights are violated by public authority, legal recourse is open to him. If no other jurisdiction is justified, the ordinary legal process is given. Art. 10 para. 2 sentence 2 remains unaffected.

However, these fundamental rights are so general and broad that they are of relatively little direct benefit in a specific individual case. However, they form the basis of the more recent examination law, because the Federal Constitutional Court has derived the requirements for the examination law (see above) from these basic rights. From this it follows, for example, that the requirements in a job-related examination, contrary to widespread misconception, must not be determined by the examiner and not in individual cases, but require a legal basis. The exercise of the profession can therefore only be restricted by means of a formal law, ordinance or statute (the latter only after statutory authorization). However, the parliament itself has to regulate all questions essential for the exercise of fundamental rights. The restrictive law must be sufficiently specific and must clearly indicate the “scope and limits of the intervention”.

Because the right to examinations goes back essentially to the Basic Law, the commentary can be found in the Basic Law commentaries on Article 12 (1) of the Basic Law, in addition to the specialist literature on the right to examine .

Other legal norms

Various federal and state laws are important here, but this depends on the individual case, because there are a large number of different vocational training courses and examinations.

In the university area, these are primarily the university framework law and the respective state law (university law or similar), because universities are a state matter. This normally regulates which examinations there are, who is allowed to be the examiner, what the purpose of the examination is and whether, how and what the university is authorized to issue examination regulations.

The legislature (i.e. the federal government and the states) are also obliged to formulate legal recourse against examination decisions. The administrative courts have been warning of this for years. The legislature usually does not comply with this, although the university laws are regularly the subject of debates, changes and political interests. This suggests that legal recourse against examination decisions is politically undesirable and that a certain arbitrariness is unconstitutional, but is de facto approved and promoted by politics ( autonomy of the universities ).

Nevertheless, the legal process is not completely unregulated. In the absence of audit-specific regulations, general administrative law applies, thus the Administrative Procedure Act or the State Administrative Procedure Acts (e.g. on inspection of files, obligation to state reasons, etc.) and the administrative court rules (objection, lawsuit, etc.).

At the same time the most important and nevertheless weakest legal norm are the respective examination regulations , i. d. As a rule, it is a sub-statutory norm with the rank of a regulation. It requires legal authorization, must meet the requirements of the law and i. d. R. have been published ( Official Journal ). It must regulate the examination process and the requirements and standards of the examination, unless this has already been done by law. It must also define the grades to be awarded. It is not enough, as is often the case, to just list them by name. The grades must be provided with reference values ​​(e.g. the number of points to be achieved or a comprehensible description). If the examination regulations are faulty and result in a disadvantage, they can be attacked and repealed by filing a judicial review action ( § 47 VwGO ).

According to a ruling by the ECJ , audit work is subject to data protection law. Candidates can assert their rights as data subjects, e.g. B. request inspection of their examination papers at any time or have them deleted.

Judicial law

The most important thing in dispute and useful for the test, but very confusing law is judge-made law , that the previously adopted and published for the general court decisions, mainly the administrative courts , the administrative courts of appeal , the Federal Administrative Court, and of course the Federal Constitutional Court . Publications are usually made in the relevant legal journals, and more recently sometimes via the courts' web servers or commercial databases. However, it is practically impossible for the examinee to get an overview of the existing decisions. The entry and the overview is via the u. G. Literature. In the event of a dispute, however, it is urgently advisable not to be satisfied with the often brief and (too) brief explanations of the literature, but to refer to and read the decisions named therein in full text in order to rule out misunderstandings etc.

It should be noted that some of the decisions, especially from the time before 1991, are outdated and no longer applicable due to the case law of the Federal Constitutional Court, mainly the important decision of 1991 (see above).

Remedies and Remedies

In general, the examination decision is subject to administrative legal channels. If the legal process is not regulated in a special right of examination, the normal objection and legal action applies. Depending on the country's law, this can initially be done by objecting to the decision or directly via the complaint to the administrative court. The appeal must be justified. As a dependent procedural act, the examination evaluation by the examiner cannot be contested directly, but only in connection with the examination notification, but in some examinations the evaluation and notification coincide. The details can be found in the literature and the applicable laws. The remedies of counter-presentation and reminder can also be used.

The principle applies that the judge cannot be an examiner. That is why you cannot normally complain for a pass or an improvement in the grade, but only for the revocation of the decision and a new decision after a new assessment or repetition of the examination. You can only complain about a better grade in exceptional cases, such as incorrectly adding up points or calculation errors in the formation of the overall grade from individual grades, in which the better grade inevitably results without a new assessment.

There is a second way in examination law: the Federal Constitutional Court ruled in 1991 (see above) that, on the one hand, the examiner ultimately has no room for maneuver for judicial review, and, on the other hand, the guarantee of legal recourse assures the examinee to defend himself against it. To this end, it has prescribed an independent internal administrative control procedure as "an indispensable compensation for the imperfect control of examination decisions by the courts". However, there were differences of opinion among the administrative courts as to how this procedure should be structured, whether it should be carried out either as part of the examination before the opposition proceedings or as part of the opposition proceedings. The Federal Administrative Court has decided that it does not matter, but only that the examinee can achieve a control of the examination-specific evaluations with significant participation of the original examiners. This procedure can therefore also be rescheduled in the administrative dispute. The examinee loses his entitlement, however, if he has renounced it or has not submitted his objections in time. The candidate must therefore present his objections at the latest at the beginning of the administrative court proceedings. The prerequisite is, of course, that the decision on the examination is justified in writing on the decisive points. The agency must then forward the objections to the reviewers who will conduct the reconsideration process.

As a rule, objections to the examiner or the authority that are directed towards the reconsideration process do not respect the deadline for appeal . Therefore, in principle, an objection or administrative action must be filed or filed to meet the deadline. At the same time (or to be submitted after the announcement), the other objections must be presented. The objection or administrative court proceedings must then be temporarily suspended.

The ban on deterioration applies, i.e. the grade cannot be deteriorated by legal remedies by the examinee. By opposing an evaluation, the examinee does not run the risk of a worse evaluation.

Obligations of the examinee

The examinee is not obliged to defend himself against illegal examination decisions. Nevertheless, he has obligations that he has to fulfill in his own interest, because only then is the legal remedy effective and only then can it be successful.

  • As is generally the case in law, the candidate must meet deadlines for legal remedies. If the deadline is missed, nothing works. However, there are also exceptions to this, for example if the deadline was missed through no fault of its own (reinstatement) or the instructions on legal remedies were omitted.
  • Some complaints must be made immediately so that the examination authority or the examiner is given the opportunity to remedy the deficiency or to break off the examination. This includes all the defects that are not only in the assessment, but also affect the provision of services itself. Examples are noise, cold, heat, other disturbances, unclear tasks, etc. The reason lies in the principle of equal opportunities: The examinee must not be able to initially accept the disturbance tacitly and then complain later if the grade is not satisfactory. This would have given him an impermissible advantage over other test subjects.
  • Complaints against the evaluation must be made promptly , because it depends largely on the auditor's memories, which of course fade. In the case of written examinations, this is of minor importance, while it is of particular importance in the case of oral examinations. If the examinee intends to attack an oral grade, he should request a written justification as soon as possible.
  • Objections, in particular those raised for the reconsideration process, must be specific, substantiated (i.e. explained, justified, provided with literature references or the opinions of accepted experts), understandable and helpful. So you can't just say the examiner is too strict or biased. You have to state precisely what is technically incorrect, illegal or otherwise to be criticized in the assessment. If the evaluation does not stand up to the comparison with the evaluation of other test items, this must be proven.
  • The examinee can only claim damages if he has tried to avert the damage through legal means.

literature

To the right of examination

  • Norbert Niehues, Edgar Fischer, Christoph Jeremias, Examination Law, 7th edition, Verlag CH Beck, Munich, 2018, ISBN 978-3-406-70742-1
  • Wolfgang Zimmerling, Robert Brehm: Examination Law, Procedure - Avoidable Errors - Legal Protection , 3rd Edition, Carl Heymanns Verlag, Cologne, 2007, ISBN 3-452-24752-X
  • Wolfgang Zimmerling, Robert Brehm: The examination process , 1st edition, Carl Heymanns Verlag, Cologne, 2004, ISBN 3-452-25770-3
  • Norbert Niehues: School and Examination Law, Volume 2: Examination Law, NJW Series 27/2 , 3rd Edition, Verlag CH Beck, Munich, 1994, ISBN 3-406-38160-X
  • Harald Fliegauf: Examination law, guidelines for practice , 1st edition, Verlag Kohlhammer, Stuttgart, 1996, ISBN 3-17-014087-6
  • Christian Birnbaum: My right to exams , 1st edition, Deutscher Taschenbuch Verlag, Munich, 2007, ISBN 978-3-423-50647-2

References to other citations

  • Hans Herbert von Arnim (ed.): Corruption, networks in politics, offices and economy , 1st edition, Verlag Knaur, Munich, 2003, ISBN 3-426-77683-9
  • Peter Becker: Examination right - a constructive criticism of his rituals. Nomos Verlag 1988, ISBN 3-7890-1548-2

Web links

Individual evidence

  1. ↑ Az. 1 BvR 419/81, 213/83 = BVerfGE 84, 34
  2. ↑ Az. 1 BvR 1529/84, 138/87 = BVerfGE 84, 59
  3. ↑ BVerfGE 41, 251 265.
  4. ↑ BVerfGE 86, 28 40.
  5. ↑ Malte Kröger: Data protection and examination law - what the Nowak judgment means for the examination system. Retrieved February 6, 2018 .