Definition and Legal Classification of the Excellence Initiative
The Excellence Initiative is a significant, government-funded support program of the Federal Republic of Germany. Its aim was to strengthen top-level university research, ensure international competitiveness, and sustainably promote the development of individual profiles at German universities. Although the initiative is primarily associated with education and research policy, it possesses a variety of complex legal dimensions that concern both federal and state law.
In the following, the primary legal foundations, the hierarchy of norms, administrative procedures, resulting rights and obligations of participating corporations, as well as the impact on higher education law and science law will be explained in detail.
Legal Foundations of the Excellence Initiative
Constitutional Foundations
The Excellence Initiative operates within the constitutional context of German federalism. Its essential basis is the Basic Law (GG), in particular:
- Art. 91b GG: This article regulates the cooperation between the federal government and the states in the field of science and research. Within the framework of the Excellence Initiative, cooperation was institutionalized, extending beyond the tradition of the “Joint Science Task”.
- Art. 30, 70 GG (Distribution of Powers): The legislative power concerning higher education policy lies fundamentally with the federal states, while the federal government can only act within the scope of academic research funding.
The Excellence Initiative therefore always required an inter-state basis for cooperation, taking into account the respective state higher education laws.
Statutory and Budgetary Provisions
The specific implementation of the Excellence Initiative did not occur through a federal law, but rather was based on administrative agreements and the provision of funding within the framework of budget laws (in particular, the Federal Budget Act and the respective budget acts of the states).
Essential Legal Bases:
- Budget laws of the federal government and the states
- Administrative agreement between the federal government and the states for further development of the Excellence Initiative
- relevant state higher education laws (e.g., BayHSchG in Bavaria, BerlHG in Berlin)
- Third-party funding law and public procurement law (especially GWB and VgV)
Institutional Implementation and Administrative Procedures
Basic Structure of the Excellence Initiative
Coordination was mainly carried out by the German Research Foundation (DFG) and the Science Council (WR), which served as intermediary institutions and were responsible for evaluating the applications for funding. Allocation of funding to universities took place within the framework of formalized procurement procedures that are bound to the provisions of German administrative law.
Funding Lines
Within the scope of the Excellence Initiative, various funding lines were implemented, in particular:
- Graduate Schools
- Excellence Clusters
- Future Concepts
Each of these funding lines was subject to specific approval and awarding requirements.
Selection and Awarding Procedures
Legal Nature of the Selection Procedure
The selection procedure must be designed as an administrative process in accordance with the principles of the Administrative Procedures Act (VwVfG) and relevant state-level administrative procedure laws. The process also involves aspects of competition law and financial constitutional law.
Transparency and Legal Protection
The principles of transparency and fair competition apply throughout. In principle, there are options for legal protection against adverse funding decisions, for which the administrative judiciary is responsible (see Code of Administrative Court Procedure – VwGO). However, lawsuits against funding decisions have limited prospects of success in practice due to the discretionary powers of the responsible authorities.
Aspects of Public Procurement Law
Where state funds are allocated, public procurement law must be observed, especially when the allocation of funds is connected with contract awards within the meaning of the GWB (Act Against Restraints of Competition) or the VgV (Procurement Ordinance). This is of particular importance to the procurement projects of funded institutions.
Excellence Initiative in the Area of Tension between Higher Education Law and Science Law
Implications for Higher Education Law
A university’s participation in the Excellence Initiative results in numerous legal implications:
- University Autonomy: Allocation of funding within the framework of the Excellence Initiative affects university autonomy and the structure of their basic regulations.
- Aspects of Cooperation Law: Inter-institutional cooperation, for example in the form of excellence clusters, requires a legal basis in the form of contracts and statutes.
- Third-party Funding Law: Management of the allocated funds is subject to the regulations on third-party fund administration, particularly with regard to accounting and commitment of funds.
Legal Framework for Science
Science law is affected by the Excellence Initiative in various ways, such as with regard to
- freedom of research and teaching (Art. 5 para. 3 sentence 1 GG),
- the principle of equal treatment in the allocation of funds,
- independence of selection committees,
- ethical guidelines, especially in the context of research projects.
Effects and Legal Consequences
Legal Status of Beneficiaries
Participation in the Excellence Initiative entails significant rights, but also obligations, for universities. These include in particular:
- Monitoring and reporting obligations to the funding bodies,
- Obligation to use funds exclusively for their intended purpose,
- Compliance with requirements from state higher education law and third-party funding law,
- Accountability to the public and parliaments.
Legal Challenges and Disputed Issues
Despite the intended objectives, legal disputes have regularly arisen in connection with the Excellence Initiative, in particular:
- Questions regarding legal protection in cases of unsuccessful applications,
- Controversies regarding procurement law,
- Questions of discrimination and equal treatment,
- Aspects of data protection law due to the processing of sensitive application and review data.
Further Development: Excellence Strategy and Successor Programs
In 2016, the Excellence Initiative was replaced by its successor program, the “Excellence Strategy”. The legal principles of the Excellence Initiative have essentially been preserved, but were further developed and newly accentuated in certain details. The continuation of the program is also based on administrative agreements between the federal government and the states, whereby the existing legal structures and procedural standards continue to play a central role.
References and Further Reading
- Basic Law for the Federal Republic of Germany
- Administrative Procedures Act (VwVfG)
- Federal Budget Act
- State higher education laws
- Act Against Restraints of Competition (GWB)
- Procurement Ordinance (VgV)
- Documents of the Joint Science Conference (GWK)
- Publications of the German Research Foundation (DFG)
- Recommendations of the Science Council
Conclusion: The Excellence Initiative represents a multifaceted funding instrument with extensive legal implications in the German higher education and science sector. The legal analysis covers constitutional, budgetary, administrative, procurement, and higher education law aspects, making the initiative a significant and still formative element of the German scientific landscape.
Frequently Asked Questions
What legal bases govern the allocation of funding within the framework of the Excellence Initiative?
The allocation of funding within the Excellence Initiative is primarily based on budgetary and administrative regulations at both the federal and state levels. In particular, the Federal Budget Act (BHO) and the respective state budget regulations are decisive, ensuring the intended, economic, and efficient use of funds. The funding guidelines, which are adopted by the Joint Science Conference (GWK) and implemented by the Federal Ministry of Education and Research (BMBF) together with the federal states, specify the formal and substantive requirements for applications, use of funds, and proof of proper use of funds. In addition, procurement law applies insofar as public contracts are awarded as part of the projects. Furthermore, the approval notices each count as administrative acts, whose conditions and requirements are legally binding for the funded universities.
What obligations do funded universities assume from funding notices under the Excellence Initiative?
In the context of the funding notices, funded universities undertake to use the grants exclusively for the intended purpose in line with the funding objective, and to comply with applicable budgetary, administrative, and, if applicable, European legal requirements. These include, in particular, adherence to publicity and transparency obligations, proper accounting, submission of verifiable proofs (proof of use), implementation of anti-corruption measures, and—depending on the funding guidelines—possibly also the assurance of equal opportunities and anti-discrimination. A breach of these obligations may give rise to administrative claims for repayment of allocated funds.
What options for legal protection do universities have in the event of a negative funding decision?
If a university does not receive a grant in the Excellence Initiative selection procedure, it generally has recourse to administrative legal proceedings. The funding decision is usually notified as an administrative act. There is the possibility to file an objection to a negative decision or to bring an action before the competent administrative court. However, it should be noted that funding decisions are usually discretionary decisions, where the authorities have a margin of appreciation. Judicial review focuses on procedural errors, errors of judgment, abuse or exceeding of discretion, as well as on compliance with the principles of equal treatment. There is no legal entitlement to funding, but there is a legal entitlement to a decision free of legal error and arbitrariness.
Are there any special legal requirements for cooperation with partners from abroad under the Excellence Initiative?
The promotion of international cooperation is subject to specific legal requirements, particularly with regard to third-party funding law, export control, and data protection. Thus, the grant conditions of the Excellence Initiative must be observed, taking into account international treaties and European state aid law. When involving foreign partners, it must be checked whether the transfer of funds, transfer of rights (particularly in the context of intellectual property), and data exchange (GDPR/data export) are permitted or require special consents/agreements. In addition, other legal provisions can be affected, such as tax and labor law regulations, for example when sending researchers abroad.
What requirements exist with regard to transparency and accountability for funded universities?
As part of the Excellence Initiative, funded universities are required to submit comprehensive transparency and accountability reports. In particular, it is mandated that regular status reports, proofs of use, and financial reports be provided, which must comprehensively document the proper and economical use of funds. These documents must be submitted to the audit authorities of the federal government, the states, and the Federal Court of Auditors on request. The results of scientific work for which funding from the Excellence Initiative was used are often subject to publicity obligations as well, to ensure traceability and knowledge transfer. Violating these obligations may lead to sanctions up to and including full repayment of the allocated funds.
How is the relationship between federal and state law structured within the framework of the Excellence Initiative?
The Excellence Initiative is a joint funding program of the federal and state governments and is based on the principle of federal-state cooperation under Art. 91b GG (Basic Law). Its concrete implementation requires adherence to both federal and state requirements. While federal law—for example, the BHO and specific funding guidelines—regulates the overall strategic framework and management of funds at the federal level, state legislation has a supplementary or implementing role, especially for higher education law and budget regulations. Universities are obliged to comply with both levels of regulation, with the higher-ranking law usually taking precedence in the event of a conflict. Close coordination between the laws is legally required to ensure legal certainty.
