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In two decisions, the Federal Administrative Court dealt with the salary of professors in Bremen and Schleswig-Holstein and judged the new regulations introduced in 2013 differently: While it considered the Bremen regulation to be unconstitutional and appealed to the BVerfG, it took the Schleswig-Holstein regulation, the one Complete reduction of benefits granted before 2013 made possible by the new basic salary increase, considered constitutional.
Dispute about newly regulated professors’ salaries after the BVerfG judgment of 2012
At the beginning of 2012, the Federal Constitutional Court overturned the salary of professors in salary group W2. In the period that followed, the federal states reacted with various new legal regulations as of January 1st, 2013. Some compensated for the deficit in the alimony that had been criticized by increasing the basic salary and offsetting this increase against the individual performance-related payments previously granted to the professors – including Schleswig-Holstein. The benefit payments can be affected in full by the reduction. In Bremen, on the other hand, the basic salaries of the professors were not increased, but each professor was granted a minimum monthly benefit of 600 euros, regardless of the individual level of benefits. This remuneration is unlimited and takes part in salary adjustments. However, if the professor had already been granted individual benefits of 600 euros per month before the reference date, his benefits would not increase.
Lower courts dismissed the lawsuits
In the Bremen case, the plaintiff already had individual benefit payments of 870 euros per month on January 1, 2013, so that he only benefited from the permanent tenure and the regular salary increases. He complained that due to the approval of minimum performance payments independent of individual performance, the distance to professors without individual performance payments, which was justified by his special individual performance, was eliminated. The plaintiffs in the case from Schleswig-Holstein complained about the offsetting regulation. In both Bremen and Schleswig-Holstein, the lower courts considered the respective regulation to be constitutional and dismissed the complaints. On the other hand, plaintiffs filed an appeal.
BVerwG: Bremen regulation on minimum benefits unconstitutional
The BVerwG saw things differently with the Bremen regulation. The regulation on the approval of minimum benefits is based on Art. 3 Abs. 1 and kind 33 Abs. 5 GG incompatible. From the point of view of the wording, the flat-rate minimum benefit payment, which is independent of individual performance, contradicts the legislative decision for a two-part model of professors’ remuneration made up of a basic salary and performance-related payments. In terms of effect, it is an increase in the basic salary rates, with this increase being fully offset against existing individual benefits. This interpretation, which cannot be reconciled with the wording of the legal regulation, has the consequence that benefits earned on the basis of individual performance in the amount of 600 euros per month are completely used up as a result of the crediting. In addition, it leads to different groups of university teachers being treated differently without justification, depending on the date of their appointment and the award of benefits on the basis of their individual performance.
Schleswig-Holstein crediting regulations conform to the constitution
In the case of Schleswig-Holstein, however, the BVerwG rejected the appeals. The – if necessary complete – reduction of the benefit payments by the increase of the basic salary does not violate the Basic Law. It is true that the benefits paid as part of the professor’s salary are in principle subject to the protection of Art. 33 Abs. 5 GG After the BVerfG judgment on the Hessian professor’s salary, Schleswig-Holstein had reason to restructure the professor’s salary. The fact that in this context the basic salaries were generally increased and at the same time existing performance bonuses were reduced is not inappropriate. The BVerwG had already decided this in the past for the partial melting that was the only decision-making factor in the cases there. It also applies to the eventual complete melting. The performance principle of Art. 33 Abs. 2 GG, the general principle of equality of Art. 3 Abs. 1 GG and the constitutional ban on retroactivity are not violated.
on BVerwG, judgment of 06/22/2023 – 2 C 11.21
Editorial office beck-aktuell, June 23, 2023.
Related Links
From the beck-online database
BVerfG, W 2 professor salary in Hesse unconstitutional, BeckRS 2012, 47146
OVG Schleswig, salary, salary group, approval, benefits, crediting, civil servants, notice of objection, subsistence, action for rescission, BeckRS 2021, 28794
Leisner-Egensperger, The civil service salary system: constitutional structures and current perspectives, NVwZ 2019, 425
Stuttmann, Zeitenwende – The determination of the minimum salary according to the BVerfG, NVwZ 2015, 1007
Budjarek, Scope for a new regulation of professors’ salaries, DÖV 2012, 465
BVerfG, W 2 professor salary in Hesse unconstitutional, BeckRS 2012, 47146
Schwabe, The unconstitutional professor salary, NVwZ 2012, 610