Suche
Contact
02.08.2016 | KPMG Law Insights

State aid framework: EU regulates state aid for research and development anew

Dear Readers,

It remains exciting: The recast of the EU framework on state aid (“Union framework”) is available, but – contrary to the original schedule – still not in its final version. Nevertheless, the question for universities and research institutions is whether the changes will bring the clarity they have been longing for regarding the classification of university/research activities as part of the economic or non-economic sphere. Is there a chance to say goodbye to full cost and separation accounting?

There were also many new developments in procurement law at the turn of the year: The Karlsruhe Higher Regional Court ruled in favor of public-sector customers, allowing them to base their procurement on existing technology. For IT procurement, a long-awaited decision. You will find more details on this and the latest developments in public procurement case law on the evaluation of prizes in this newsletter.

The NRW Higher Education Act is in “amendment mode”: first there was the Higher Education Act, then freedom was added and it became the Higher Education Freedom Act. But that’s not all. In the future, there will be a Higher Education Future Act in NRW, which is currently in draft form and is already subject to some criticism.

We wish you an exciting read.

Your

Public Sector Team of KPMG Law Firm

Mathias Oberndörfer

Lawyer

Dr. Anke Empting

Attorney at Law

New EU framework for state aid (“Union framework”) takes shape

On December 20, 2013, the EU Commission published a draft of the new “Union Framework” for public consultation. It sets out the conditions under which member states may in future grant state aid for research, development and innovation activities (R&D&I) without having to notify and approve the measure with the EU Commission. The final version of the revision of the Union Framework is scheduled to enter into force on July 1, 2014.

It was hoped that the new version would eliminate significant ambiguities. According to the current draft status, this has only been partially fulfilled. In particular, there is still a lack of clear definitions.

Nevertheless, the new Union Framework contains some innovations that point to an easier and more legally secure handling of R&D&I aid in the future. These innovations include:

  • The clear definition of the exact scope of the Union Framework and the extension of the scope to include R&D&I aid for prototypes and pilot projects;
  • more comprehensive definitions of terms, for example an explanation of “assignment in full”, which is important for dealing with intellectual property rights;
  • if an institution of higher education or a research facility or infrastructure is used almost exclusively for a non-economic activity, it may fall outside the scope of state aid law altogether, even if it also engages in a “secondary economic activity”; this may, however, amount to no more than 15 percent of the total annual budget of the institution of higher education or research facility or infrastructure in question;
  • the thresholds above which support is no longer covered by the GBER but must be notified for approval on the basis of the EU’s framework on state aid will be raised significantly;
  • In the case of R&D&I projects co-financed by the EU, the legal presumption that the respective aid is necessary and appropriate within the meaning of the GBER will apply in the future without further examination

On January 22, 2014, the EU Commission extended its 2008 approval of the “Directive on the Promotion of Innovative, Technology-Oriented Collaborative Projects, Networks and Clusters” and at the same time made an important statement on how to deal with the EU Framework for State Aid, which expired at the end of 2013.

The measure aims in particular to promote cooperation within the framework of alliances, networks and clusters, mainly through a joint R&D project in the categories of industrial research and/or experimental development.

In its above-mentioned decision, the EU Commission approved an increase in funding to EUR 145 million and an extension of the term until December 31, 2014. This is in line with one of the EU Commission’s key objectives, which it recently set out in its “Horizon 2020” communication.

 

Illegal award has no effect on follow-up contract

In its decision of November 15, 2013 – 15 Verg 5/13 – the Higher Regional Court of Karlsruhe ruled that it is not an irrelevant consideration if public contracting authorities align their procurement object with an already existing technology. This also applies if the original contract was awarded in violation of procurement law.

In the case to be decided by the court, the applicant unsuccessfully objected to the de facto award of a contract for the software expansion of an existing operational control system. This had been acquired by the state of Baden-Württemberg from the applicant’s competitor in 2011 by way of a direct award – which later turned out to be illegal. In the opinion of the state, the software extension now required should also be carried out by the competitor originally commissioned on the basis of existing exclusive rights. The court supported this view.

If the award is to be made to the most economically advantageous bid and the contracting authority specifies as sub-criteria 95 percent price and 5 percent scheduling, the principle of economic efficiency relevant under procurement law and the contracting authority’s self-binding obligation to the award criterion specified in the notice are violated (OLG Düsseldorf, 27.11.2013 – VII-Verg 20/13).

According to the Düsseldorf Higher Regional Court, the award criterion of the most economically advantageous bid downgrades the “scheduling” criterion, which applies in addition to price, to an insignificant level of 5 percent. The decision to award the contract is in fact based solely on the bid price. The other criteria would only have an “alibi function”.

Planned Innovations of the Higher Education Future Act NRW

Until mid-January, universities in North Rhine-Westphalia had the opportunity to comment on the draft of the Higher Education Future Act presented on November 12, 2013. Among other things, the law is intended to create transparency in economic management, for example through uniform regulations in budget management from 2017.

However, the amendment is highly controversial from the higher education side. Major criticisms include:

  • Considerable restriction of the freedom and self-responsibility of the universities by prescribing standardized processes and excessive control rights of the ministry;
  • undue influence by the Department on higher education development planning;
  • increased bureaucracy through the creation of additional bodies;
  • Weakening of NRW as a science and business location due to the planned legal obligation to publish third-party funding and research projects.

Explore #more

13.06.2024 | Press releases

Handelsblatt and Best Lawyers honor KPMG Law Experts

Best Lawyers has once again identified the best commercial lawyers in Germany for 2024 exclusively for Handelsblatt. A total of 28 lawyers were honored by…

27.05.2024 | KPMG Law Insights

Agreement on ecodesign regulation: products to become more sustainable

After lengthy negotiations, the Council and Parliament of the European Union reached a provisional agreement on the Ecodesign Regulation on the night of December 5,…

22.05.2024 | KPMG Law Insights

The AI Act is coming: EU wants to get a grip on AI risks

For many people, artificial intelligence (AI) is the great hope for business, healthcare and science. But there are also plenty of critics who fear the…

17.05.2024 | KPMG Law Insights

Podcast series “KPMG Law on air”: When the family business is to be sold

Around 38,000 family businesses are currently handed over each year. In most cases, the change of ownership takes place within the family. But more and…

03.05.2024 | KPMG Law Insights

Doubts about inability to work? What employers can do

The certificate of incapacity for work (AU certificate) serves as proof of incapacity for work due to illness. However, only if the certificate meets certain…

27.03.2024 | KPMG Law Insights

EU Buildings Directive: life cycle greenhouse potential becomes relevant

On March 12, 2024, the EU Parliament approved the amendment to the EU Buildings Directive. The directive obliges member states and, indirectly, building owners and…

19.03.2024 | Business Performance & Resilience, KPMG Law Insights

CSDDD: Provisional agreement on the EU Supply Chain Directive

The EU member states agreed on the CSDDD, the EU Supply Chain Directive, on March 15, 2024. Germany abstained from the vote. Negotiators from the…

21.02.2024 | KPMG Law Insights, KPMG Law Insights

The Digital Services Act – what does it mean for companies?

The Digital Services Act (DSA) is a key component of the EU’s digital strategy and came into force on November 16, 2022. As a regulation,…

15.02.2024 | KPMG Law Insights

Data compliance management: How to implement it in practice

Part 3 of the article series “Professional tips for data compliance management”   The third part of this series of articles deals with data compliance

14.02.2024 | Business Performance & Resilience, PR Publications

Guest article in ZURe: Monitoring the implementation of the LkSG

The current issue of ZURe (p. 20 ff.) contains a guest article by KPMG Law Partner Thomas Uhlig (Head of General Business and Commercial Law),…

Contact

Mathias Oberndörfer

Geschäftsführer
Mitglied des Vorstands Service Tax - KPMG AG Wirt­schafts­prüfungs­gesell­schaft

Theodor-Heuss-Straße 5
70174 Stuttgart

tel: +49 711 781923410
moberndoerfer@kpmg-law.com

© 2024 KPMG Law Rechtsanwaltsgesellschaft mbH, associated with KPMG AG Wirtschaftsprüfungsgesellschaft, a public limited company under German law and a member of the global KPMG organisation of independent member firms affiliated with KPMG International Limited, a Private English Company Limited by Guarantee. All rights reserved. For more details on the structure of KPMG’s global organisation, please visit https://home.kpmg/governance.

 KPMG International does not provide services to clients. No member firm is authorised to bind or contract KPMG International or any other member firm to any third party, just as KPMG International is not authorised to bind or contract any other member firm.

Scroll