Concept and Legal Foundations of the Digital Pact
The Concept Digital Pact in the Federal Republic of Germany refers in particular to funding measures intended to strengthen the digital infrastructure and equipment of educational institutions. Legally relevant is especially the ‘DigitalPakt Schule,’ which is implemented based on nationwide and state legal agreements. The legal basis is the DigitalPakt Schule administrative agreement in conjunction with amendments to the Basic Law.
Origin and Constitutional Framework
The implementation of the Digital Pact is based on cooperation between the federal government and the states (‘cooperation ban’). As education spending is generally a matter for the states, Article 104c of the Basic Law restricts the federal government’s competencies in the field of education. To enable coordinated nationwide promotion of digital infrastructure, Article 104c of the Basic Law was amended in 2019 through the Act to Amend the Basic Law (Federal Law Gazette I p. 404). Now, under certain conditions, the federal government may provide funds for digitalization initiatives in the education sector.
Administrative Agreement DigitalPakt Schule
Contracting Parties and Legal Nature
The DigitalPakt Schule administrative agreement is a public law contract between the federal government and the 16 federal states. It is explicitly an administrative agreement sui generis, whose legal character is derived from public budget law and the Basic Law.
Contents of the Administrative Agreement
The agreement regulates details on the provision, application, and control of the funds. Key aspects include:
- Ensuring that funds are used for their intended purpose
- Ensuring an adequate co-financing contribution by states and municipalities
- Requirements for application procedures, proof and review of projects
The agreement is based on the idea of creating a modern and efficient digital education infrastructure, particularly by promoting broadband connections, WLAN installations, digital end devices, and learning platforms.
Implementation under State Law
The concrete design and distribution of federal funds is the responsibility of the individual federal states. Accordingly, the legal framework in the states is determined by funding guidelines, budget laws and administrative provisions, which regulate the scope and obligations of the municipal school authorities.
The respective funding guidelines define:
- Eligible applicants (usually school authorities)
- Eligible expenditures and projects
- Procedures for application, approval and accounting
- Controls and sanctions in case of misuse of funds
Financial Regulations and Structure
Scope and Designation of Funds
The Digital Pact provides for a total funding amount in the billions, which is made available over several years. The federal budget funds are, according to Article 104c GG and the administrative agreement, strictly earmarked, particularly to improve digital infrastructure in German schools.
To ensure correct use of the funds, the states are required to contribute their own funds and to provide proof of the use of the grant monies. Misappropriation may result in claims for repayment by the federal government.
Disbursement and Verification Procedures
The disbursement of funds usually takes place on a reimbursement basis upon request by the states. As part of the verification process, recipients are required to comply with budgetary regulations and document the use of the funds.
To monitor effectiveness and prevent double or multiple funding from central Europe, specific audit mechanisms and reporting obligations have been established to ensure transparency and the legally secure use of funds.
Control and Sanction Mechanisms
Audit Rights and Accountability Obligations
The administrative agreement grants the federal government comprehensive information and audit rights. This includes, in particular, the right to audit funding measures on a sample or case-by-case basis. In the event of irregularities, violations of procurement law, or misappropriation of funds, the agreement provides for the possibility of repayment of government funding.
Legal Remedies and Dispute Resolution
In the event of disputes between the federal government, states or school authorities, the general principles of administrative law apply, especially in the area of grants. Legal protection is provided by the administrative courts. Details of dispute resolution are regulated in the administrative agreement.
Legal Assessment and Further Development
Evaluation and Legislative Amendments
The legal development of the Digital Pact is subject to ongoing evaluation. Findings from practical implementation are incorporated into the further development of funding guidelines and legal instruments. Debates are ongoing especially regarding compatibility with the principle of federalism, ensuring transparency in the use of funds, and data protection law for digital learning platforms.
Outlook
The Digital Pact is an instrument for modernizing the educational infrastructure in Germany. Its legal structure is exemplary of forms of cooperation between the federal and state governments in the area of investment funding. In the context of digital transformation, the Digital Pact represents a significant legal and structural component for the further development of the German education system.
See also:
- Administrative Agreement
- Educational Federalism
- Basic Law (GG) – Art. 104c
- Subsidy Law
Frequently Asked Questions
How do you ensure a legally secure application for funding within the framework of the Digital Pact?
Applications for funding under the DigitalPakt Schule are submitted as part of a formal application process by the competent school expense bearers, usually municipalities or districts, to the relevant approving authorities in the states. Legally, it is important to comply with the respective state funding guidelines and the administrative act of the grant notification. Regularly required are proof of a media education concept, a detailed cost and action plan, and compliance with municipal regulations, such as budgetary approvals and procurement law in accordance with GWB, VgV, or UVgO. Errors in the application process, incomplete documentation, or failure to observe formal criteria can result in rejection or recovery of funds. Prior legal review of application documents is strongly recommended to avoid loss of legal rights.
What legal requirements must be observed when awarding and procuring digital devices under the Digital Pact?
The procurement of digital end devices under the Digital Pact is subject to strict public procurement rules. Starting from a contract value of EUR 1,000 net, public procurement law applies, particularly the rules of the UVgO (public procurement ordinance below thresholds) or the VgV (public procurement regulation), as well as the relevant state procurement laws. Public contracting authorities must conduct a transparent, non-discriminatory, and competitive procedure characterized by documentation and traceability. Compliance with the obligation to publish, to form lots, and to consider social and environmental aspects must also be ensured. Errors may lead to challenges, review procedures or the recovery of granted funding. In addition, any data protection requirements must be strictly observed in the selection of hardware and software.
What documentation and verification obligations apply to recipients of grants from the Digital Pact?
Recipients of grants from the Digital Pact are required to properly, transparently, and verifiably document all funding-related documents. This includes in particular complete records of financial flows, the timely and appropriate use of funds, and evidence of implementation of the funded measure. Common requirements include submission of original invoices, payment receipts, procurement records, performance certificates and usage reports, which must be kept for at least five years after completion. If documentation is inadequate, the state may reclaim funds or withhold further payments. There is also a comprehensive duty to provide information and cooperate with audit bodies such as audit offices.
Who is legally responsible for the proper use of funds in the framework of the Digital Pact?
The legal responsibility for the contractual and appropriate use of funds lies fundamentally with the school authority, usually the district, independent city or municipalities acting as school expense bearers. They are liable for ensuring that funds are used exclusively for the purposes specified in the grant notification and in accordance with administrative and budgetary regulations. In cases of misuse, improper use or gross negligence, claims for repayment, damages or even criminal liability (§ 263 StGB fraud) may be asserted against responsible persons. Within the municipality or the school authority, internal responsibilities and controls may be defined through internal rules or service instructions.
What liability risks exist in the context of the Digital Pact for schools and school authorities?
By accepting and using funds from the Digital Pact, both schools and school authorities assume increased legal responsibility. The primary liability risk is the recovery of funds in case of violations of funding guidelines, budgetary law or procurement law. In addition, data protection violations, for example when choosing unsuitable software or insufficient technical and organizational measures (TOMs) under the GDPR, may result in fines or claims for damages from affected parties. Tortious liability of the acting individuals, e.g. for intentional or grossly negligent violations of procurement regulations, cannot be ruled out. Therefore, careful legal supervision of all funding measures is essential.
What special considerations apply to the purpose limitation and observance of deadlines regarding funding under the Digital Pact?
Investments and acquisitions funded under the Digital Pact are generally subject to a purpose limitation period, usually five years from the completion of the measure. During this period, funded items may neither be sold nor used for a purpose other than that specified. The school authority must document the unchanged and appropriate use in its usage report. Violation of deadlines or the purpose of the funding may result in the partial or complete recovery of funding by the approving authority. Any depreciation periods and consideration in the municipal budget must also be observed. Missed deadlines must be reported immediately to the approving authority to enable mitigation of damages.
