02.04.2014 | KPMG Law Insights

Negotiations between the EU and Switzerland on funding programs halted – training funding also for trimesters

Dear Readers,

Shortly before the European elections, our focus this time is once again on EU state aid and subsidy law.

Exciting times are coming for the research and development landscape: The EU Commission has issued a draft communication on state aid, especially for R&D&I projects. This draft is cause for celebration, as the Commission is now defining and concretizing numerous terms and funding instruments from the various EU funds in a cross-regulatory manner, thus creating greater legal certainty.

In addition, the ECJ has commented on the binding of national courts to opinions of the EU Commission and clarified that national courts are not bound by subsequently issued opinions of the Commission when implementing decisions of the EU Commission, but must take them into account in accordance with the principle of loyal cooperation.

We wish you an exciting read!

Your Public Sector Team at KPMG Rechtsanwaltsgesellschaft mbH

Mathias Oberndörfer Dr. Anke Empting

The reason for the stop is Switzerland’s announcement that it does not want to grant the new EU member state Croatia freedom of movement. In the view of the EU Commission, freedom of movement – in this case of researchers and students – is an indispensable component of the funding programs for both Horizon 2020 and Erasmus +. Therefore, all upcoming rounds of negotiations on Swiss participation in the support programs would have to be postponed until the discussion on Croatia’s free movement of persons had been positively concluded and Switzerland had signed the corresponding protocols.

As a result, Switzerland may in the meantime lose out on substantial EU funding for the research and development sector and for student exchanges.

Higher education law: Education grants are also available for trimesters

In its decision of January 13, 2014, the Higher Administrative Court of Lower Saxony (Oberverwaltungsgericht Niedersachsen, OVG) ruled that the term “semester” contained in the German Federal Training Assistance Act (Bundesausbildungsförderungsgesetz, Bausbildungsförderungsgesetz) generally also includes trimesters if the training sections at a foreign university are not divided into semesters but into trimesters.

In the first-instance proceedings, the administrative court had obliged the responsible BaföG office to grant a student educational assistance in accordance with the Federal Education Assistance Act (Bundesausbildungsförderungsgesetz) for her stay abroad at James Cook University in Singapore in the statutory amount.

The Administrative Court based this decision on the fact that a student’s claim under the regulations of § 5 para. 2 No. 1 BAföG is given. According to this provision, educational assistance is provided for attendance at an educational institution located abroad if this is conducive to the education according to the level of education and – in the case of universities – at least part of the education can be credited to the prescribed or customary period of education. The training would also have to last at least six months or one semester. If it takes place within the framework of a cooperation agreed with the training institution visited, it must last at least twelve weeks.

“Semester” is not necessarily 6-month period

It is true that the training periods at James Cook University are divided into trimesters. However, this was not detrimental to the granting of education subsidies, especially since the university’s academic calendar provides for three semesters of study per calendar year. The student in question had spent one such term entirely at the university, thus pursuing a meaningful partial education.

The OVG of Lower Saxony has now ruled that this is correct. This is because the term “semester” contained in the Federal Training Assistance Act cannot generally be understood as a half-year of study comprising the period of six months. Otherwise, the legal provision that the training must last at least six months would be superfluous, because a six-month minimum training period would already be prescribed by the concept of semester, if a semester were always a six-month training period. Consequently, the term “semester” could also include a training period lasting less than six months.

Furthermore, the above interpretation of the term semester would also be in line with the aim of the Training Assistance Reform Act to make the minimum duration of training abroad more flexible and to expand the support abroad.

Meaningful partial training required

As a result, the term “semester” also includes a trimester, if at a foreign university the training sections are not divided into semesters, but into trimesters. There is no reasonable doubt that a meaningful partial training can also be pursued in a trimester, which is the decisive factor according to the legal materials.

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Mathias Oberndörfer

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