27.08.2014 | KPMG Law Insights

Federal Constitutional Court rules on academic freedom versus organizational law

Dear Readers,

The summer break is hardly over, and already there is new case law from the highest courts. Read our first article summarizing the decision of the Federal Constitutional Court on a constitutional complaint concerning university organizational regulations for a medical school.

We also report on news from the funding landscape. There has been strong criticism of the implementation of the Germany Scholarship. According to surveys of students, the German scholarship culture is also not particularly good. Details can be found under our Education/Research section.

The issue of environmental friendliness in the awarding of contracts is becoming increasingly important for public-sector clients. You can find out how this can be implemented in the design of procurement procedures in our last article on procurement law.

We wish you interesting reading.

Sincerely yours

Public Sector Team of KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

Lawyer Attorney

Academic freedom versus organizational law

How does the constitutionally protected right to academic freedom relate to the right of the management of universities and research institutions to “organizational freedom”? The Federal Constitutional Court has issued a ruling on this (dated June 24, 2014, Ref. 1 BvR 321/07), which has an indirect impact on the entire higher education landscape.

The constitutional complaint was directed against regulations under higher education organization law for a medical university in Lower Saxony and their effects on the scientific sector. The organization of university medicine has to deal with science and with patient care. The connection of the areas is organized differently in the federal states.

The court ruled: “There are serious concerns when decisions about the organization of a medical school are assigned to a board in which the members for research and teaching and for the budget have only veto rights, while the senate, with its wide-ranging expertise, is not given a decisive role in the decision.

It follows from this: In principle, there is room for maneuver in regulating the operation of science with regard to the different tasks of scientific institutions. The safeguarding of academic freedom through organizational regulations, however, requires that academics, through their representation in the (university) bodies, can ward off threats to academic freedom and contribute their professional expertise.


Digital agenda – new funding for broadband expansion?

The German government has presented its “Digital Agenda” up to 2018. A central aspect is the nationwide expansion of high-speed Internet for the whole of Germany. Internet connections with at least 50 megabits per second are to be achieved nationwide in the future. Other goals include promoting the IT economy and improving IT security and data protection.

The German government left the question of financing open, especially in the case of high-speed Internet. Telecommunications providers have already announced that network expansion is not financially worthwhile, especially in rural regions. According to estimates, investments of 20 billion euros are needed to fully supply Germany with high-speed Internet.

Federal Cabinet approves BAföG reform

The German government passed the so-called BAföG reform on August 20, 2014. These are some of the core contents:

  • The funding amounts for students and pupils as well as the parental allowances will increase by 7 percentage points; as a result, an additional 110,000 young people will be able to receive BAföG;
  • the maximum monthly subsidy including the housing supplement increases from 670 to 735 euros (plus 9.7 percentage points);
  • in the future, an Internet application should be possible.

The federal government will take over the financing of BAföG completely as of January 1, 2015. Previously, the states had to contribute 35 percent of the costs. This saves them almost 1.2 billion euros a year. The money is intended to benefit universities in particular.

By assuming the full BaföG costs, the federal government expects the states to agree to an amendment to the Basic Law. For example, the ban on cooperation between the federal and state governments in the higher education sector, which was introduced in 2006, is to be relaxed again.

Federal Audit Office criticizes “Germany Scholarship

With the “National Scholarship Program” (Deutschlandstipendium), the Federal Ministry of Education and Research (BMBF) has been granting talented students at German universities a monthly allowance of 300 euros since the summer semester of 2011. The Federal Audit Office has conducted an accompanying audit of the Deutschlandstipendium. The result: the main objectives were not achieved during the period under review.

  • Of the €56.7 million available for 2010 to 2012, only €25.3 million was actually spent;
  • the planned maximum funding quotas in 2011 and 2012 were not nearly achieved;
  • the Deutschlandstipendium is actually intended to motivate young people to take up studies; in fact, however, 93 percent of the scholarship recipients had already been enrolled at a university for some time;
  • In 2011, the costs of implementation were almost as high as the expenses for the grants themselves.

The Federal Audit Office called on the BMBF to put the Deutschlandstipendium to the test and to subject it to a systematic performance review. The maximum funding rate was lowered to 2 percent for the current legislative session as a result of the report.

Exclusion due to lack of environmental friendliness

In its decision of May 7, 2014 (Case No. Verg. 46/13), the Higher Administrative Court of Düsseldorf ruled that a public contracting authority’s requirement that the service to be commissioned be performed using environmentally friendly means is permissible in principle.

In the present case, the client had demanded environmentally friendly vehicles, among other things, for the towing of cars parked in violation of the regulations.

The court ruled: environmental requirements as so-called (additional) requirements for the performance of the contract within the meaning of § 97 para. 4 GWB are permissible as so-called “execution criteria”. This is because they are linked to the subject matter of the contract, as they relate to the manner in which the service is to be performed or rendered.

On the other hand, it is not permissible to carry out a preventive control in such a way that the environmental requirements are already demanded in the award procedure by submitting evidence in order to determine whether they can later be complied with by the bidder during the execution of the contract.

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