31.10.2013 | KPMG Law Insights

EU aid legislation: new procedural regulation enters into force

Dear Readers,

We are very pleased that you have chosen to receive our information letter “Science & Law”. We will be happy to inform you at regular intervals about legal topics relating to education, science, research and transfer. We welcome your suggestions on exciting and current topics as well as criticism.

In this issue, we present the new procedural regulation of the EU Commission relevant to EU state aid law and report on the current case law on notification periods under public procurement law. In addition, we have summarized for you two important decisions from the area of higher education law – on the prohibition of “course hopping” and on the freedom of statutes of higher education institutions.

We wish you interesting reading.

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

Lawyer Attorney

New procedural regulation in force

Since the end of August 2013, the revised version of the EU procedural regulation on state aid of July 22, 2013 has been in force. At the same time, the European Commission adopted a new regulation for the exemption of state aid from the notification requirement (Enabling Regulation on Block Exemption). The new rules are part of a comprehensive initiative by the EU Commission to modernize EU state aid law.

The aim is to improve the processing of state aid complaints at the EU Commission and to enable complaints to be examined more quickly and transparently. The new regulation has given the EU Commission the option of requesting the information required for its investigation procedure directly from market participants or obtaining it by initiating special, sector-specific investigations. In addition, the new regulation codifies the conditions for enhanced cooperation between the EU Commission and national courts.

The Enabling Regulation contains new categories of aid that the European Commission can exempt from the notification requirement. These block exemptions, which are also of substantial importance to universities and research institutions, relate to sectors in which, among other things, no significant distortions of competition are feared.


Statutory freedom of higher education institutions with regard to master’s admission criteria

In its decision of September 2, 2013 (Case No. 7 CE 13.1084), the Bavarian Administrative Court (VGH) of Munich clarified that a university is largely free to determine the admission requirements for master’s degree programs and, in particular, is authorized to specify a minimum final grade of the preceding bachelor’s degree program in its statutes.

The background to the decision of the VGH is the complaint of a student at the Ludwig Maximilian University of Munich (LMU). He was denied admission to the master’s program in economics because he had not achieved the required minimum final grade of “good” in his bachelor’s program as set by LMU. The student criticized the minimum final grade as arbitrary. The VGH rejected this. In this way, the university in question ensures the high professional and scientific level required for a master’s degree program. This was lawful and therefore not objectionable.

No shortening of the complaint period

In its decision of June 19, 2013 (Case No.: Verg 8/13), the Düsseldorf Higher Regional Court ruled that a reduction of the time limit for lodging a complaint to seven calendar days in the context of a negotiated procedure without a competitive bidding process above the threshold values is inadmissible and thus invalid.

In justification, the court referred to the statutory minimum standards for the granting of proper legal protection in award procedures above the threshold values. According to these minimum standards, the bidder must give notice “without undue delay”, whereby the time limit begins with knowledge of the violations of the contract award. In this case, however, such knowledge could only be established with certainty when the complainant engaged the representative for the proceedings, not already on the basis of the complainant’s initial assumption, which first had to be verified by means of legal advice.

As a result, the OLG Düsseldorf confirms the corresponding case law of the ECJ.

Once again: consequences of scientific misconduct

The Deutsche Forschungsgemeinschaft (DFG, German Research Foundation ) issues written reprimands and application suspensions for scientific misconduct in two cases.

The first written reprimand concerns a scientist who had made an incorrect statement about the publication status of a manuscript in his application for a DFG research fellowship.

The DFG issued the second written reprimand, with a simultaneous two-year exclusion from eligibility to apply for funding, to a researcher who had copied passages from third-party publications verbatim in a funding application without citing the sources. The DFG thus makes it clear that misconduct – even negligent misconduct – is no longer without consequences.


Preventing “course hopping”

The Berlin Administrative Court recently clarified in a court decision dated September 9, 2013 (Case No. 27 K 264.12) that students cannot obtain additional examination attempts beyond those provided for in the respective examination regulations by changing their field of study.

A student had made several unsuccessful attempts at examinations in the study module “Mathematics I” in two different courses of study and had been exmatriculated as a result. In principle, the Administrative Court assessed the compulsory exmatriculation provided for in a large number of study and examination regulations in the event of three failed examinations as a permissible and necessary expression of the principle of equal opportunities under examination law.

The decision also clarifies that the universities are largely free in the question of crediting certain examination achievements in the case of a change of study program and, if the study programs are comparable, can also take failed attempts into account in the case of a change from a diploma to a bachelor’s degree program.

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Mathias Oberndörfer

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