Whether it is an Abitur (A-level) examination, a university examination, or an examination for further vocational training, if there is a suspicion that the work performed has not been assessed following the specifications, the examination can generally be contested in Germany. But even if you have been unlawfully refused admission to an examination or have been credited for an attempt despite being unable to take the examination, you may be able to contest the examination.
Our German administrative lawyers are committed to defending your rights and your professional future. They are available to answer any questions you may have regarding German examination law and will be happy to check for you if the assessment of your examination is incorrect and if there is a possibility of contestation. If necessary, our lawyers will file an objection to the contestation on your behalf and/or bring an action for contestation.
What are the Consequences of an Examination Appeal?
If the examination appeal is successful, the incorrect assessment or decision is cancelled, and the examination authority, i.e. the school or university, is obliged to carry out a new, lawful assessment or examination. The court itself does not determine a new examination result. The reassessment or the re-run of the examination itself can, therefore, lead to a better or worse result than the initial result. In practice, such a “correction” is rare and possible but should be considered when contesting an examination.
It is essential to note that examination decisions in Germany are only subject to limited review by administrative courts, as these are examination-specific assessments, and the examiners have room for manoeuvre. Particularly in the case of oral examinations, details are, therefore, more difficult to understand as the evaluation is linked to a past situation that cannot be recreated.
What is covered by the Term Examination Appeal?
The term “examination appeal” refers to the legal action taken by the examinee against an assessment or decision relating to an examination or examination performance unfavourable to them.
The majority of examination appeals in Germany are appeals against unsatisfactory examination results. This means that the candidate has either failed the examination or had expected a significantly better score despite passing. In addition to this case of an examination challenge, however, the term also includes cases where a candidate is not even admitted to the examination because it is wrongly assumed that they do not fulfil the admission requirements. Finally, an examination can also be contested if the candidate cannot take part in the examination due to incapacity, but this examination was nevertheless assessed – in the form of an attempt used with an attempt limitation or in the form of a grade.
Disruptions in the organisation of an examination can also lead to an examination being contested in Germany. As procedural defects, these faults are just as much a prerequisite for contestation as substantive defects/assessment errors.
Requirements for Contesting an Examination – When Can I Successfully Contest an Examination?
To successfully challenge an examination, there must be either procedural defects or substantive defects/evaluation errors.
1. Procedural Defects
Procedural defects include violations of the respective examination regulations, the German Administrative Procedure Act (VwVfG), and other procedural defects. For the procedural defect to be recognised by the administrative courts, the defect must be reported in good time (obligation to give notice of defects). Specifically, this means that in the case of an oral examination, you must report the disruption to the examiner or the examination board during or at the latest after the examination. In the case of a written examination, the mistake must be reported to the invigilator immediately. The defect must also be recorded in writing. Even in the case of possible bias, the candidate must raise this objection before the start of the examination. If the examinee does not fulfil their obligation to give notice of defects, they can no longer assert the procedural defect in court.
The examination regulations in Germany specify the respective framework conditions for an examination at the university or the training occupation. According to Section 16 of the German Higher Education Framework Act (HRG), university examinations may only be taken based on examination regulations. These regulate, among other things, the examination procedure, the assessment of examination results and the grading system. An offence against the examination regulations has been assumed by case law in the following cases:
- if a protocol was not taken during an oral examination, although this is required in the examination regulations (VG Freiburg, judgement of 5 October 2005 – 1 K 593/04),
- the specified examination time was not adhered to (BverwG, decision of 8 August 1983 – 7 B 120/83),
- only one expert opinion was prepared for an examination paper instead of the required two (BverwG, NVwZ-RR 1989, 80f),
- an unelected commission chairperson participates in the examination (OVG Münster, DVBl 2005, 1532).
Furthermore, only examiners who possess at least the qualification to be determined by the examination or an equivalent qualification are authorised to conduct university examinations (Section 15 (4) HRG).
In the case of violations of the German Administrative Procedure Act, the bias of an examiner is of particular relevance as a procedural defect. The examiner is deemed to be biased if they do not act in a detached and objectively neutral manner. This is regulated in Section 20 (1, 5) of the German Administrative Procedure Act. According to this, relatives, representatives, and employees of the examinee are considered biased and therefore excluded as examiners. According to case law, demeaning statements of any kind, such as racist or sexist remarks or negative comments about the examinee’s religious beliefs, can also give rise to the necessary mistrust for bias (BverwG, NVwZ 1988, 527 (530)). Furthermore, a lack of justification for the assessment decision can be significant. In particular, if the examinee has requested the reasons in writing. The examinee’s right is derived from Art. 12 I, 19 (4) of the German Basic Law (GG).
In addition to violations of the relevant examination regulations and the German Administrative Procedure Act, there may be other procedural irregularities. The loss of a submitted paper by the examination authority constitutes such a procedural irregularity.
Candidates with disabilities are a special case. The disadvantages the examinee suffers due to their disability must be compensated to ensure equal opportunities (see Section 16 sentence 4 HRG). This can be compensated for, for example, by extending writing or working hours or providing reading assistance. Failure to do so is always a procedural error.
2. Content Deficiencies/Evaluation Errors
Content-related defects relate to the assessment of performance. The court can only examine errors of judgment here. The examiners have a scope of judgment specific to the examination, which is not subject to court review. This is because the examiners have subject-specific knowledge and experience from comparable examinations. It is, therefore, only possible for the courts to review errors of judgment. These include:
- Lack of a comprehensible justification
- Violation of procedural rules
- Incorrect or incompletely determined facts
- Disregard of generally applicable valuation principles
- Extraneous considerations
- Lack of a comprehensible justification
The auditor’s scope for judgment is not unlimited. The auditor must, therefore, justify their assessment in a comprehensible manner. However, our practical experience has shown that the reasons often turn out to be very brief. This makes the assessor all the less vulnerable because the less they fulfil their obligation to give reasons, the fewer points of attack there are.
According to case law, the following cases constitute a breach of the procedural rules:
- The examination covers topics that are not provided for in the examination regulations (BverwG, NJW 1998, 323),
- In school examinations, examination material is tested that is outside the curriculum,
- Incorrect application of the grade definition (OVG Koblenz, DVBl 1986, 1116f).
An error in the determination of the facts is relevant if, for example:
- the examiner does not include an addition to the text,
- the examiner leaves the room or falls asleep during an oral examination (BverfG, NVwZ 1995, 469(470)),
- calculation errors occur when determining the number of points,
- an examiner misunderstands the task and as a result marks it incorrectly (BverwG, NVwZ 1985, 187(188)).
Article 12 para. 1 of the German Basic Law (GG) stipulates the general assessment principle for professional examinations that a justifiable solution logically justified with weighty arguments may not be assessed as incorrect. Furthermore, the requirement to evaluate written and oral examinations objectively and fairly also applies. This point is understood as a general clause and should not be considered if one of the abovementioned deficiencies is already present.
An examination only fulfils the requirements of the rule of law if the examiner submits to the requirement of objectivity. This includes the examiner taking note of the examination performance with inner distance and free of emotion. The examiner can also be expected to understand the candidate’s explanations correctly, respond to the candidate’s train of thought, and show tolerance towards divergent scientific opinions. Just as in the case of an error of fact, an examination decision is fundamentally unlawful if the examiner has made irrelevant considerations, even if irrelevant considerations do not influence the assessment in its entirety but only in part (BverwG 7C57.83 (151-153).
Extraneous considerations include the following:
- the examinee’s behaviour during class, punctuality, or leisure interests,
- affiliation or non-affiliation of the examinee to a particular party or organisation,
- The assessment in an oral examination becomes unobjective if the examiner gives free rein to their anger about poor examination performance and thus loses the composure and emotional distance without which a fair assessment can hardly succeed.
How does an Examination Appeal Work in Practice?
Our German lawyers will request the examination file from the relevant examination office on your behalf, inspect it and make copies of the assignments and written examinations/papers. If you have already taken these steps, we will ask you to send us the documents so we can examine them.
The assessment enables us to assess the chances of success of your examination appeal. If the chances of an examination appeal are good and you wish to pursue this further, we will appeal against the final decision of the examination board. The reasons for the appeal will then be submitted to the relevant examination office, and an internal administrative review procedure will begin. If the examiners reconsider their assessment in your favour, a positive notice of appeal will be issued.
A complaint can be submitted to the administrative court if the appeal decision is unfavourable.
An Overview: Frequently Asked Questions about Contesting Examinations
If you fall ill before the start of the examination or are otherwise unable to take the examination through no fault of your own, you are obliged to inform the examination office immediately. In cases of illness, it is usual for your medical certificate to state that you are unable to take the examination. In some cases, the examination regulations stipulate that this must be certified by a medical officer.
If you become unfit to take an examination (e.g. you become so unwell that it is impossible to continue with the examination), inform the invigilator and discuss the next steps on the spot. If you leave the examination without agreeing to retake the exam, it will be difficult to challenge your decision.
The chances of a successful appeal are different in each case. It depends on whether you have complied with your obligation to give notice of the errors in the examination procedure and to what extent the criticised aspects can be retraced. It also depends on what objective you are pursuing with the challenge and what your starting position is. In any case, it is advisable to review the examination and assessment documents and not to reject the possibility of an examination challenge prematurely.
As the appeal results in a new assessment or examination procedure, it is theoretically possible that a lower grade will be awarded than the original result. However, based on our professional experience and discussions with colleagues, we can report that we are not yet aware of any cases of a “Verbösung” (deterioration of the grade).
Examination appeals usually involve considerable time and work, so we only become involved in this area after concluding a fee agreement with the client. We are often asked about the approximate costs of an examination appeal. These can vary greatly depending on the amount of work involved, which is why we cannot provide fixed prices. The costs to be expected also depend on whether the appeal proceedings were successful or whether there are additional costs from any administrative proceedings. We will be happy to provide you with non-binding information on the costs to be expected in your proceedings on request.
Practice Group: German Administrative Law
Practice Group:
German Administrative Law
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