Term explanation: Freischuss
Der Freischuss is a concept anchored in German law, primarily applied in the context of university examinations. It describes the right of examinees to take an examination “on a trial basis” under certain conditions, meaning without counting towards the regular number of examination attempts. The Freischuss is used in the examination regulations of numerous degree programs and is particularly established in the legal field (First State Examination in Law) and various state-specific examination regulations. The specific design, prerequisites, effects on an individual’s examination record, and the legal foundations are subject to detailed regulations and numerous court decisions.
Legal foundations of the Freischuss
Statutory regulations
The legal basis for the Freischuss is not codified in federal law but is primarily established in the respective study and examination regulations and state laws.
Law (Legal Education)
In the field of legal education, the Freischuss is regulated in the state laws governing the education and examination of lawyers (for example the JAG – Juristenausbildungsgesetz). The regulations for the Freischuss are not uniform nationwide but differ from state to state.
As an example, Section 22 of the Hamburg Act on Legal Education and Training (HJAG) governs the Freischuss procedure. Similar regulations can be found in the JAG laws of the states of Bavaria, North Rhine-Westphalia, Baden-Württemberg, and other federal states.
Other fields of application
Besides legal education, Freischuss regulations also exist in other degree programs, such as medicine, pharmacy, or teacher training. Their legal foundations are the respective examination regulations of the universities as well as state training laws such as the State Higher Education Act (LHG) or the Higher Education Act (HG).
Case law and administrative practice
The structuring and interpretation of Freischuss regulations are frequently the subject of administrative court decisions, particularly in connection with contesting examination decisions, recognition of Freischuss prerequisites, or hardship provisions.
Prerequisites for the Freischuss
Overview of the prerequisites
The Freischuss can generally only be claimed if certain requirements are met:
- Standard period of study: The examination must typically be taken within the standard period of study or within a set timeframe after its end, often with a grace period.
- Fulfillment of specific performance requirements: By the time the Freischuss examination is taken, all required certificates of achievement usually must have been obtained.
- No prior definitive failed attempt: The Freischuss is generally only possible if the examination is being taken for the first time and there has not yet been a definitive failure.
For example, the Bavarian Jurist Education Act (BayJAG) stipulates that the First State Examination in Law can be taken as a Freischuss if certain deadlines (standard period of study plus one semester) are met and the required certificates are submitted in time.
Legal consequences of the Freischuss
Effects of an unsuccessful Freischuss
If the examination is not passed within the Freischuss, this generally has no effect on the permitted number of regular examination attempts. That is, the exam is considered as not taken, and there is no penalty in the form of a failed attempt. Retaking the examination is fully possible.
Effects if passed and grade improvement
If the exam is passed in the Freischuss, the result is counted as a regular examination result. Many examination regulations also provide for the possibility of grade improvement: If the candidate passes a Freischuss examination, they may repeat it once for the purpose of improving their grade. In this case, the better result counts. The conditions and deadlines for grade improvement vary according to the degree program and examination regulation.
Distinction from similar legal institutions
Withdrawal and absence
A Freischuss differs fundamentally from a withdrawal or excused absence from an examination. While in cases of withdrawal or excused absence, the examination is not counted as a failed attempt, the Freischuss serves as a deliberately “non-counting” examination attempt, even if the examination has actually been taken.
Hardship regulations
The possibility of claiming a Freischuss is regularly tied to the fulfillment of strict deadlines or requirements. However, many regulations provide exceptions for cases of hardship. In such instances, for example, due to proof of serious personal or family reasons, an extension of the Freischuss deadline can be requested.
Legal assessment and practical significance
Purpose and objective of the Freischuss
The Freischuss serves the purpose of incentivizing high-performing students to take the examination at an early stage without the risk of a regular failed attempt. It thus contributes to shortening the duration of studies and rewards outstanding academic achievements.
Critique and discussion
It has been critically noted that the very strict deadlines of the Freischuss could disadvantage students with atypical biographies, chronic illnesses, or family responsibilities. The administrative hurdles to obtain a hardship provision are sometimes high, which is regularly discussed in case law and literature.
Summary
The Freischuss is a significant examination instrument in German university law, firmly anchored in numerous examination regulations and state legal provisions. The regulations on the Freischuss are detailed and vary depending on the federal state, degree program, and specific examination regulations. Essentially, the Freischuss enables students, under certain conditions, to take an exam without it counting toward the regular number of exam attempts. In case of passing, additional rights for grade improvement exist. The legal framework is shaped by numerous statutes, ordinances, and pertinent court decisions and is subject to continual development.
Frequently asked questions
Which legal foundations govern the Freischuss and where can they be found?
The legal framework for the so-called “Freischuss” in Germany is predominantly established by the respective state higher education laws, the relevant university examination regulations, and the specific degree program regulations. In particular, there is no nationwide regulation, so the prerequisites, procedures, and legal consequences can vary by state. Typically, for example, the higher education law of a federal state (§§ regarding study and examination matters) as well as the training and examination regulations for law and medical programs contain detailed provisions on when and under what conditions a Freischuss may be claimed. As a rule, the standard period of study must be observed and certain deadlines adhered to. Additionally, examination offices often refer to further details in their administrative guidelines. For judicial review, decisions of the administrative courts are decisive, as they occasionally establish standards of interpretation for unclear legal formulations.
Who decides in cases of dispute about the granting of a Freischuss?
The primary responsibility for deciding on the granting of a Freischuss lies with the competent examination office of the university. This office checks whether the legal and statutory prerequisites are met. If the application is rejected, the applicant can file an objection, in which case an internal appeals office at the university may review the case again. If the appeal is also rejected, the applicant generally has access to the normal administrative courts. The relevant local administrative court first decides whether the university’s decision was lawful. In individual cases, ombudspersons or mediation offices within the university can be contacted, though their decisions are generally not legally binding.
What are the legal consequences of claiming a Freischuss if an examination is not passed?
If a Freischuss is validly claimed, the legal consequence is usually that, contrary to other regulations, a failed examination attempt is deemed not to have taken place. This means that no examination attempt is counted, deadlines do not start or continue, and any possible repeat examinations are unaffected. However, this legal consequence applies only under strict observance of the prerequisites stated in the examination regulations; the failure must not be due to cheating, plagiarism, or conduct in breach of regulations. In medical and legal degree programs, an improvement clause may also be provided, allowing a grade improvement by retaking the exam if it was initially passed in the Freischuss.
Can hardship provisions for Freischuss deadlines be applied for?
Higher education law generally provides the possibility that in special hardship cases (e.g., extended illness, pregnancy, care of relatives), the deadlines relevant to the Freischuss can be adjusted or extended. The prerequisite is usually a timely application and the submission of corresponding evidence (e.g., medical certificates). The respective examination regulations specify in detail the circumstances that constitute a hardship and the resulting legal consequences (e.g., make-up Freischuss, extension of deadlines). The decision is regularly at the discretion of the examination office, which can be judicially reviewed according to § 114 VwGO to ensure it was exercised without error.
Are legal remedies available against a denial decision regarding the Freischuss?
Yes, against a negative administrative decision regarding the Freischuss—be it in regard to granting, deadline extensions, or potential grade improvement—the affected person has access to standard administrative legal remedies. This includes, initially, an objection (if provided under state law) and, subsequently, legal action before the administrative court. In most states, the administrative court is the court of first instance. In disputes about Freischuss regulations, issues such as equal treatment, protection of legitimate expectations, and the right to be heard are regularly discussed. The affected person has the right to access the entire administrative file in order to adequately represent their interests.
What legal considerations apply if exams are missed due to illness during the Freischuss deadline?
If a candidate falls ill during the relevant Freischuss period and is therefore unable to attend an examination, the examination regulations generally provide that, upon timely submission of a medical certificate, a deadline extension or the opportunity to take the Freischuss at a later date is possible. It is essential that the certificate is submitted without delay and that the illness is clearly certified, and in some cases an official medical certificate may be required. According to the highest court rulings (including the Federal Administrative Court), the opportunity to make up the examination must generally be granted, provided there is no abuse and the candidate’s subjective examination conditions are significantly impaired. It is important to ensure binding coordination with the examination office and adhere to all deadlines to avoid legal disadvantages.
