25.04.2014 | KPMG Law Insights

EU Commission supports complainants

Dear Readers,

This month is dominated by EU state aid law: In April 2014, the EU Commission completed what is probably the most comprehensive reform of state aid procedures in the past 15 years with the introduction of the complaint form. With the complaint form, the EU Commission supports complainants in communicating information in the context of complaint procedures. However, the EU Commission now attaches two criteria to the information received from third parties in order to make complaint procedures even more effective in the future. For more information, see our first post.

In the second article, we continue our coverage of court decisions on the requirement of scientific honesty in doctoral procedures. In addition, the new category “Report Education/Research” provides you with an overview of two statements by the German Council of Science and Humanities on science and university research in Germany and on the need for further dovetailing of academic and vocational training.

As usual, we have also summarized two new decisions on public procurement law from case law for you. In our last article you will find some information about a new funding program of the BMBF.

We wish you interesting reading.

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer

Dr. Anke Empting
Attorney at Law


EU Commission introduces new complaint form

The European Commission has introduced a new complaint form. Competitors of potentially favored companies can thus report suspected violations of state aid. In the future, state aid complaints must meet two essential criteria before they can be formally registered. The EU Commission also hopes that this will lead to a reduction in the number of complaints.

  • First, only Member States, persons, undertakings and associations of undertakings whose interests may be affected by the granting of unlawful aid may lodge a complaint with the Commission;
  • secondly, the information sent to the EU Commission must be complete and must be submitted using the now only admissible complaint form, which can be downloaded from the EU Commission’s home page.

The publication of the new complaint form marks the completion of the reform of the EU Commission’s procedural regulation.


The requirement of scientific honesty in the doctoral process

The reasons for the decision of the Düsseldorf Administrative Court of March 20, 2014 (Case No. 15 K 2271/13) are now available. They were eagerly awaited, after all, the promotion of a former federal minister is at stake. The reasons show a clear picture of the importance attached to the “requirement of scientific honesty” in the doctoral process.

The Düsseldorf Administrative Court considers it mandatory for a candidate to perform an examination service in person. Intellectual property of third parties must be made verifiable by identifying all ideas taken verbatim or in spirit from sources and literature at the respective places in the dissertation.

The Administrative Court found no error of law in the fact that the faculty council responsible in this case considers scientific fairness to be a cardinal duty of every scientist. According to this, plagiarism above the triviality threshold would have to be considered a serious disruption of scientific discourse.

Whether the decision will be reviewed by the Münster Higher Administrative Court in the second instance is not yet known on this side.

Science and university research put to the test

In a position paper of April 9/11, 2014 (Drs. 3821-14), the German Council of Science and Humanities concludes: “There is room for improvement in the content-related networking of university and science research. In addition, the permanent institutional anchoring of both fields through professorships and institutes that could conduct internationally outstanding research leaves much to be desired.

In the view of the Council of Science and Humanities, cooperative relations between university research on the one hand and science research on the other must be expanded, for example by means of a joint research agenda.

In its statement of April 11, 2014 (Drs. 3818-14), the German Council of Science and Humanities recommends a functional balance and stronger integration of vocational and academic education. Permeability must be increased in both directions, he said. Particularly when it comes to the fundamental decision between vocational training and university studies, students must be offered targeted support, for example in the form of systematic career and study orientation.

In connection with the combination of vocational and university education, the Council of Science and Humanities also recommends, among other things:

  • in the case of admission to higher education, the subject-related requirement and proof of professional experience are to be waived for vocationally qualified persons without a high school diploma;
  • Transitions from academic to vocational education should be facilitated

Misconduct of the awarding authority is not grounds for annulment

In its ruling of March 20, 2014 (Ref.: X ZB 18/13), the German Federal Court of Justice (BGH) clarified that strict standards must be applied to the existence of a reason justifying the cancellation of a tender. Accordingly, mere misconduct on the part of the awarding authority giving rise to the cancellation of the invitation to tender is not sufficient.

In the opinion of the BGH, a contracting authority may in principle refrain from a procurement project even without a reason for cancellation. The contracting authority was not obliged to terminate the award procedure with an award. However, if the cancellation of the award procedure is not covered by a recognized ground for cancellation, as in the present case, the bidders may claim damages.

According to the decision of the Munich Higher Regional Court of March 20, 2014 (Verg 17/13), a registered association under civil law can be a contracting authority if its members include local authorities which carry out a joint procurement through the association. According to the court, it is harmless that not all members of the association are themselves public contracting authorities within the meaning of Section 98 No. 1 or No. 2 GWB. Rather, the focus should be on the members who have joined together for the specific procurement process and for whom the association was active in the present case.


Guidelines for EU Strategy FH

On March 21, 2014, the Federal Ministry of Education and Research announced the guidelines for promoting the strategic positioning of universities of applied sciences with a view to European research topics as well as increasing the visibility of universities of applied sciences in Europe – EU-Strategie-FH. Support is provided, among other things, for measures that make a university of applied sciences more visible and present as a potential partner for EU applications in the Horizon 2020 program.


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Mathias Oberndörfer

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