As is well known, Austrian higher education institutions were among the first to be compelled to take restrictive measures, including a total closure of their facilities, due to the current pandemic. In the following, the team at CERHA HEMPEL outlines the legal challenges which higher education institutions and students will be confronted with in the weeks and months to come.
While the consequences of these restrictions under labour law should remain manageable, at least at state-funded higher education institutions (the question of how to deal with the fact that projects cannot now be completed arises only in the area of third-party funding), the consequences for students could be serious. For example, the receipt of transfers and benefit payments (family allowance, study allowance) is tied to a certain length of study, a certain level of academic achievement and possibly also to a maximum age. These parameters could be exceeded if examinations cannot be taken and courses cannot be completed. In the area of study assistance, e.g. Section 19 of the Study Support Act (Studienförderungsgesetz), provides a remedy by extending the duration of entitlement if there are important reasons for doing so: the duration of entitlement should generally be extended if the student is able to demonstrate that the duration of study was exceeded on important grounds; this is deemed to be the case if an unforeseen or unavoidable event occurs, if the student is not at fault or if he/she is negligent only to a lesser degree. In addition, upon application and subject to compliance with further requirements, the entitlement period is to be extended by a further semester in the event of an exceptional study load. This could include a limited program of study offered via distance learning.
However, this provision does not release the student from the obligation to provide proof of favourable academic achievement, which could give rise to cases of hardship.
Students are also dependent on the goodwill of higher education institutions with regard to any obligation they have to pay tuition fees. Institutions may grant an exemption due to special circumstances, but they are under no obligation to do so.
This set of circumstances is also problematic for students on courses that are due to be discontinued. If these students do not take the required examinations in time, they will be "switched over", i.e. they will have to continue their studies on a different curriculum (often with a loss of exam and therefore study credits). Here, the duration of courses that are due to be discontinued could also be extended.
It is also questionable how higher education institutions will deal with the fact that they are often unable to offer the legally prescribed three examination dates per semester. Depending on how the situation develops, however, it may be possible to spread out examination dates over the period during which no lectures are held.
Those students who are drafted into military service or are required to do community service or who have caring duties could, at best, apply for a leave of absence from their studies.
The last subject to be covered is private universities. Here students are charged tuition fees, while teaching is not possible (or only possible to a limited extent). It will be very important whether (and in which framework) it is still possible to hold the courses in question. Students should expect a certain delay; it is questionable at what point in time they would be entitled to assert their right to annul a training contract.
From the point of view of private universities (or universities of applied sciences), the accreditation regulations laid down in the Higher Education Quality Assurance Act (Hochschul-Qualitätssicherungsgesetz) have proven to be only partially resistant to crisis. Even if an application is submitted in time – for example, if an on-site visit cannot take place – an accreditation can expire if a decision is not made in time. As a rule, a claim for official liability would fail due to fault, meaning the persons receiving the accreditation could "go away empty-handed".
However, it should be noted that the Higher Education Quality Assurance Act does not necessarily prescribe on-site visits within the scope of accreditation procedures, so that on-site visits could be substituted by video conferencing and photo documentation.