The case attracted considerable media attention. During an exam on European law at the University of Salzburg, the correct answers to multiple choice questions were still visible for some students due to an error when the exam papers were copied. The university subsequently declared the exam null and void – wrongly, as the Administrative Court recently ruled in favour of a student represented by CERHA HEMPEL (20/8/2021, Ro 2020/10/0025).
The appellant initially appealed against the university's decision, which was dismissed by the Federal Administrative Court without holding an oral hearing. In justifying its decision, the Federal Administrative Court stated that the results of the "European law" exam, which students sat on 28 February 2019, had shown conspicuous differences in exam results "during the first review" (by the examiners). After the exam, it was no longer possible to determine which students had done better in the exam as a result of the copying error. Therefore, none of the students were deemed to have sat the exam. These conclusions are based on the administrative act and, in particular, on the "statements of the authority concerned".
To begin with, the Administrative Court examined the categorisation of exam deficiencies, stating there are deficiencies that (1) are legally irrelevant, (2) (can) lead to the removal of the exam evaluation from the body of law, and finally (3) cause the exam to be declared null and void in its entirety.
According to the Administrative Court, the first category of deficiencies can be inferred from Section 79 para. 1, which only takes account of serious deficiencies in the performance of exams. As a result, minor deficiencies are irrelevant. It is neither possible to contest, annul or set aside the evaluation, nor is the carrying out of an evaluation impeded.
On the one hand, the second category of deficiencies covers the cases of fraudulent registration for or the fraudulent assessment of exams mentioned in Section 73 para. 1 of the Universities Act, which result in the evaluation of the exam being annulled by administrative decision. On the other hand, deficiencies under Section 79 para. 1 of the Universities Act, i.e. serious deficiencies in the performance of the exam, fall within the second category. These deficiencies lead to a decision annulling a negative evaluation and thus enable (negatively evaluated) exams to be reviewed with regard to "excesses".
Finally, there are shortcomings (that fall into the third category) that are so serious that it is no longer to speak of an exam, of an evaluation of performance, or of having studied for the exam successfully. These failings must be so serious that they are beyond the threshold of "serious deficiencies" within the meaning of Section 79 para. 1 of the Universities Act, and it can no longer be assumed that the legislator intended to accept the validity of such an "exam" in the event that it is not challenged or in the event of a positive evaluation of the exam. Such shortcomings are no longer covered by the legal consequences of Section 73 para. 1 or Section 79 para. 1 of the Universities Act and result in the absolute nullity of the exam or the evaluation. As examples of the most serious deficiencies in the performance of the exam, the Administrative Court cites cases where the exam is taken by an unauthorised person or by a candidate other than the person admitted to sit the exam. In the opinion of the Administrative Court, the legal consequence of these deficiencies in the performance of the exam is that the exam is invalid or its evaluation is considered legally non-existent, meaning it is not necessary to contest it or set it aside. Further, sitting an invalid exam does not count towards the number of times a person can sit an exam. These legal consequences occur ex lege; however, the authority responsible for implementation of the study regulations is able to issue a declaratory decision on the existence of absolute nullity ex officio or upon application.
In the case at hand, the Administrative Court agrees with the legal opinion of the Federal Administrative Court that no assessment can be made on the basis of an exam paper in which the correct and incorrect answers were visually distinguishable because it is not a suitable basis for evaluating the actual level of knowledge of the person sitting an exam. Thus, the exam was so severely lacking that it must be assumed that the exam is absolutely null and void in the sense described above. However, we welcome the fact that the Administrative Court does not share the view of the Federal Administrative Court, according to which, if several individuals are sitting an exam, the exam is considered as a "whole" and, in this sense, (apparently) as a single exam process. The correct view is that the exams sat by individual candidates should be judged as separate acts, even if the exam paper takes the same form. Fortunately, it turns out it is wrong to assume that the "entire exam" is invalid.
Consequently, the Federal Administrative Court would have had to assess the specific exam sat by the appellant, but suggests that it is possible that all the required documents are no longer available. In the continued proceedings before the Federal Administrative Court, the question will therefore arise above all whom the adverse consequences will affect if the required documents can no longer be found or if it is otherwise no longer possible to determine which exam paper form the student used. It would be inequitable if this were to be at the expense of the student, who would then ultimately only be left with claims arising from the liability of the public authority. Of course, it cannot be ruled out that the student will take the exam in the meantime and that the proceedings will then be discontinued due to a lack of complaint.
MMag. Dr. Stefan Huber, LL.M., Partner
Adriana Haslinger, Junior Associate