Concept and legal foundations of elite promotion
The term “elite promotion” refers to measures, programs, and legal frameworks aimed at specifically supporting exceptionally talented and high-performing individuals in various societal sectors, particularly in education, science, the arts, and sports. More broadly, elite promotion is conducted by both public and private institutions. Legal provisions and regulations at the international, federal, and state levels govern the prerequisites, implementation, and oversight of elite promotion.
1. Definition
Elite promotion is not a term codified in law, but rather a collective term for all measures that go beyond general support and are aimed specifically at assisting the highly gifted, highly qualified, or particularly talented. Its aim is the development and support of individuals who are assigned, or can be assigned, an outstanding societal, scientific, or artistic role.
Legal regulations and support structures
2. Elite promotion in German education law
Elite promotion in the field of education is determined in particular by the following legal sources:
2.1 Basic Law and international commitments
The Basic Law (GG) guarantees the principle of equality under Article 3(1) and (3) sentence 1 GG, which imposes specific requirements on support measures. For elite promotion programs, this means that selection criteria must be transparent, objectively justified, and free from discrimination. Furthermore, Article 5(3) GG provides for the freedom of science, which is relevant to the promotion of gifted students in higher education.
In addition, international treaties such as the Universal Declaration of Human Rights (UDHR, Art. 26) and the International Covenant on Economic, Social and Cultural Rights (UN Social Pact, Art. 13) are significant as they emphasize equitable access to education—including for talented individuals.
2.2 Federal and state regulations on the promotion of gifted persons
Elite promotion is concretized in the Framework Act for Higher Education (HRG), the higher education acts of the federal states, as well as by the Federal Training Assistance Act (BAföG) and the Scholarship Program Act (StipG). These laws regulate, among other things, the requirements for awarding scholarships, selection procedures, and legal entitlements for particularly gifted apprentices or students.
At the state level, scholarship foundations, support programs, or excellence initiatives of the federal states are established, for example, in the area of promoting gifted school students. Well-known examples include state scholarship programs, schools with special support offerings, and targeted talent development measures.
2.3 Excellence Initiatives and scholarship organizations
A main focus of elite promotion in Germany is the Excellence Initiative, which is based on an administrative agreement between the federal government and the states. This supports top-level research at universities and provides for its own selection, audit, and evaluation procedures. Scholarship organizations, such as the German National Academic Foundation or the scholarship programs of political foundations, are regulated and partly funded by the state. The legal bases for these are set out in funding guidelines, selection statutes, and by-laws.
3. Elite promotion in school law
3.1. Opportunities and legal framework
In the school sector, the education laws of the federal states allow for the establishment of special classes or schools (e.g., classes for the highly gifted) that offer an adapted curriculum. The selection and admission of students are tied to specific, legally prescribed suitability criteria and procedures. Here, too, observance of the prohibition of discrimination is essential.
3.2 Legal protection and controls
The selection of candidates as well as the exclusion of applicants may be subject to legal review. In addition to general administrative law protective mechanisms, the administrative courts may be called upon if applications or selection procedures are rejected.
4. Private support institutions
Elite promotion also takes place through private organizations and companies. Legal framework conditions arise here, for example, from foundation law (§§ 80 ff. BGB), association law (§§ 21 ff. BGB), as well as competition law. Private support measures must also comply with the public interest, the principle of equal treatment, and anti-discrimination provisions, especially if public funding or charitable status is involved.
Elite promotion in the international context
5. European legal requirements
In the European context, the prohibition of discrimination (Art. 21 CFR), the education articles of the Charter of Fundamental Rights of the European Union (Art. 14 CFR), and EU programs for education and research—particularly support through “Erasmus+” or the “Horizon Europe” program—are important. These programs are based on EU regulations and directives that require national implementing acts.
6. International treaties, UNESCO, and education standards
UNESCO recommendations and OECD guidelines also influence the framework for elite promotion by postulating minimum standards and equal opportunity in the promotion of highly gifted and particularly talented individuals.
Selection, control, and legal remedy procedures
7. Selection criteria and legal oversight
Selection for elite promotion programs takes place according to defined, transparent criteria that can be legally reviewed. The criteria prescribed in legal and funding statutes include, among others, achievements, social commitment, ability profiles, and motivation. The decision-making bodies are subject to various control mechanisms, such as data protection law, anti-discrimination law, and administrative oversight.
8. Possibilities for appeal and review
Rejected applications or unfavorable funding decisions can, depending on the sponsor and legal nature, be challenged by legal remedies such as objection, complaint, or lawsuit. Administrative courts review compliance with selection statutes, transparency, and observance of the principle of equal treatment.
Data protection, transparency, and anti-discrimination
9. Data protection regulations
The application of the General Data Protection Regulation (GDPR) is mandatory for elite promotion programs, particularly with regard to the collection, processing, and storage of personal data of applicants and recipients. Support institutions must maintain the right to informational self-determination and clearly communicate the defined purpose of data processing.
10. Prohibition of discrimination and equal treatment
Elite promotion must not result in detrimental discrimination. This is regulated in particular by the General Equal Treatment Act (AGG), which, for example, prohibits discrimination on the grounds of ethnic origin, sex, or religion in the awarding of scholarships. Support measures must therefore be based on objective, comprehensible criteria.
Summary
Elite promotion refers to a multifaceted system of legally regulated measures to support particularly high-achieving and talented individuals. The legal foundations span numerous areas of law, from education and higher education law, to data protection and association law, to anti-discrimination law. Transparent selection procedures, opportunities for legal oversight, and taking into account national and international standards ensure that elite promotion programs are designed in a legally secure and equitable manner.
Frequently Asked Questions
What are the legal foundations governing elite promotion in Germany?
Elite promotion in Germany is based on various legal foundations, primarily rooted in public law, particularly higher education law, education law, and budget law. Key statutory regulations are found in the Basic Law, especially Article 5, paragraph 3, sentence 1 (freedom of research and teaching), as well as Article 91b GG, which regulates cooperation between the federal government and the states in the field of science and specifically enables research funding programs. At the federal and state levels, there are also state higher education laws that regularly contain special provisions for the promotion of particularly capable students and researchers. Programs such as the Excellence Initiative and its successor, the Excellence Strategy, are concretized by administrative agreements concluded between the federal government and the states and by specific funding guidelines, all of which are legally binding. Budget law—especially the Federal Budget Act and the respective state fiscal regulations—is also decisive, as funds are made available from public budgets and their allocation is subject to the principles of efficiency, thrift, and transparency. Allocations to individual projects or persons are usually granted civilly by awarding scholarships, funding contracts, or grants, whose contractual design is otherwise governed by general contract law.
How are selection procedures for elite promotion programs legally structured and monitored?
Selection procedures in elite promotion programs are characterized by the requirements of legal certainty, transparency, and equal opportunity in the selection process, which derive directly from the principle of equal treatment in Article 3 GG. They are bound by the principle of administrative self-commitment, which means that the selection and evaluation criteria set out in funding announcements and guidelines must be precisely adhered to. Application procedures must be free of discrimination, transparent, and reviewable. In practice, oversight takes place on the one hand through internal administrative supervision (e.g., by independent commissions or ombuds offices), and on the other, there is always the possibility for legal review through objection or legal action in the administrative courts should applicants feel their rights have been infringed by the selection process. The administration of selection procedures is also regularly monitored for compliance with data protection regulations, in particular the GDPR. Another limitation on the process results from budgetary requirements for the allocation and auditability of funds.
What are the legal effects of elite promotion on employment or training law?
Elite promotion is generally legally distinct from an employment or training relationship. The awarding of scholarships does not establish an employment relationship within the meaning of employment law (under §§ 611a BGB), since the scholarship serves solely for support and not for remuneration for work performed. There is usually no subordination or personal dependence as understood by labor law. Nonetheless, the receipt of support may entail certain obligations, such as requirements to report and provide evidence, which are governed by civil law in the funding contract. In connection with elite promotion in the context of doctoral projects, support provided by a university may result in social law classification relating to insurance matters, such as health and pension insurance, requiring detailed individual assessment. In training law, elite promotion generally has no effect on the status as a trainee or student but may, in the case of dual training, lead to additional legal questions—such as regarding release from duties.
What legal obligations and duties arise for recipients of support?
Recipients of support have various legal obligations depending on the specific support program, which are generally set out contractually in the funding or grant notification or scholarship agreement. Common obligations include providing reports on the progress of the funded project, transparency in the use of funding, compliance with scientific standards (especially good scientific practice, governed, e.g., in DFG codes or university regulations), and participation in evaluation procedures. In the event of non-compliance with these legal requirements, the organization may impose sanctions, such as reclaiming funds, prematurely terminating support, or excluding the recipient from future support. Violations of the rules of good scientific practice (e.g., plagiarism, data falsification) often also have disciplinary consequences under the respective higher education laws or civil service regulations.
How is the allocation of public funds in the context of elite promotion legally regulated?
The allocation of public funds is subject to strict legal requirements, in particular the budgetary principles of the federal government and the states (for example, §§ 23, 44 BHO and LHO) as well as specific guidelines of the funding agencies (usually federal or state ministries or third-party funders such as the DFG or foundations). The legal requirements for grants demand transparency, verifiability, earmarked use of funds, and the avoidance of double funding. Funds may only be used for the requested and approved purpose. Any subsequent change in the purpose of funding requires the relevant approval. Furthermore, the use of funds is audited by the courts of auditors at the state and federal levels. In cases of non-compliance with the approval requirements, claims for repayment or damages may be asserted. Beneficiaries are required to submit proof of use and to comply with all regulations set out in the grant notices.
What legal options are available if funding is denied?
If elite promotion is denied, applicants fundamentally have the legal remedies of objection and, where applicable, lawsuit at their disposal, provided that the funding decision is an administrative act (for example, a notice of rejection by a public body). For programs granted solely under private law, only civil law claims (e.g., under contract law) can be examined, though this is rarely successful. Notices of rejection must include justification, enabling legal review (duty to provide reasons under the Administrative Procedure Act). Judicial review is usually conducted by the administrative courts, which examine whether the procedure was lawful, free of discrimination, legally certain, and based on complete and correct facts. Where procedural errors are found, there may be a claim to a new decision, though rarely a direct claim to funding.
What special aspects regarding data protection apply to elite promotion programs?
The processing of personal data is an essential component in the implementation of elite support programs, for example during the application, selection, and supervision of scholarship recipients. The legal requirements are derived primarily from the General Data Protection Regulation (GDPR) as well as supplementary national data protection laws (the Federal Data Protection Act and state data protection laws). Data processing is only permitted on a legal basis or with consent, must be purpose-bound, limited to what is necessary, and protected against unauthorized access by technical and organizational measures. In particular, data subjects must be comprehensively informed about the type, scope, and purpose of the data processing, and they have extensive rights to information, correction, deletion, and objection. Violations of data protection regulations may result in fines and not infrequently lead to exclusion from the funding process. The transfer of data to third parties (e.g., cooperation partners) requires special legal review and, if necessary, separate consents.
