The „Berlin Model“ has become established in higher education law as a procedure for joint appointments of academics between a university and a non-university research institution. Under this model, a person appointed to a civil service post is assigned to a research institution organised under private law, where they carry out research and management duties. But what applies if, years later, this institution undergoes restructuring and the new allocation of duties no longer appears appropriate for the post held by the person concerned? The Bavarian Administrative Court (VGH Munich) has now addressed these questions. In two rulings, it has denied interim relief to two university professors against a reorganisation at their assigned research institution – on grounds that extend far beyond the specific cases in question (Ref.: 3 CE 26.646 and 3 CE 26.647 of 27 July 2026).

Note: This text was generated with the help of the AI application Claude.

Image credit: © VGH.

Facts of the case and decisions

The applicants, as university professors, had for many years been seconded to a research institute organised under private law, where they each headed a centre. When the institute reorganised its centres and transferred the previous management roles to other individuals, both applicants felt that their right to employment commensurate with their position had been infringed and sought interim legal protection. The Munich Administrative Court initially upheld both applications and ordered the university to ensure that the applicants’ previous positions were maintained. The Higher Administrative Court quashed these decisions and dismissed both applications for interim relief.

The Higher Administrative Court has already ruled out the need for urgent proceedings. When a research institution organised as an association changes its organisational structures, the collective freedom of association (Article 9(1) of the Basic Law), including the right to self-determination regarding its own organisation, applies to it, to this is added its own academic freedom (Article 5(3), first sentence, of the Basic Law). By contrast, even when invoking their academic freedom, researchers have no right to demand that a specific organisational structure or management role be maintained; rather, they are entitled only to a minimum level of resources appropriate to their discipline. However, the VGH argues that the fact that organisational changes affect interdisciplinary and cross-institutional cooperation is an inherent part of modern academic life, as are the organisational forms of joint appointments themselves. Even if this were to make larger projects more difficult, it is nevertheless reasonable for the academics to await clarification in the main proceedings. 

The court dismissed the applications for interim relief on the grounds that, within the underlying cooperative relationship, the university had no means of influencing the organisational decisions of the research institution. The right to employment commensurate with one’s position under Article 33(5) of the Basic Law is directed exclusively against the employer, not against the host institution. Nor does the chosen „Berlin Model“ constitute a barrier to future restructuring: Article 67 of the Bavarian Higher Education Act (BayHIG) is merely an enabling provision under higher education organisational law, without any guarantee of the continued existence of specific organisational forms of the research institution. In the specific case, the cooperation agreements with the research institution did not confer any right of intervention on the university either. The gaps in the regulations could not be filled unilaterally at the expense of the institute. Nor does the university’s assignment order impose any organisational obligations on the research institution or set limits on its organisational structure: it governs solely the relationship between the employer and the civil servants. With regard to on-site activities, reference was made to the institute’s internal regulations and executive board resolutions – this presupposes the continued validity of the association’s internal organisational authority, rather than restricting it. Even formulations such as an „inseparable“ link between a professorship and a management role would merely describe the situation at the time of the assignment, without conveying any guarantee of its continued existence. Similarly, the duty of care under civil service law applies exclusively to the internal relationship between the employer and the civil servants and cannot be reinterpreted as a basis for a claim against the research institution as an external third party. 

Appreciation

The Higher Administrative Court draws a clear distinction between the employer’s sphere of authority under civil service law and the research institution’s autonomous organisational authority under private law. This is convincing in principle, as an association governed by private law cannot be bound by civil service law to a previous organisational decision. The rulings thus reveal a structural weakness in the „Berlin Model“: the cooperation agreements often regulate only the framework or the objectives of the collaboration, whilst concrete arrangements and stipulations – for which, for example, reference is made to separate appointment agreements – are sometimes lacking in practice. Occasionally, even the measures governed by civil service law in the „Berlin Model“ – such as appointments or the job descriptions for professorships – have not been formalised. However, if an employer wishes to exert influence over the research institution in a critical situation, it requires a robust contractual basis for doing so. This is precisely what was lacking in the two cases in question.

For the researchers concerned, this poses a considerable risk: they are virtually defenceless in the face of organisational changes at the research institution. It is true that – as the Higher Administrative Court emphasises – civil servant academics may not, even in the context of a secondment to a non-university research institution, be assigned to a post that is not commensurate with their official status without their consent or for an indefinite period. However, if the university has not agreed on any means of exerting influence over the research institution to ensure that its professor is employed in a post commensurate with their position, the university’s only option is to terminate the secondment.