Research in Public HEIs
As mentioned above (section “Public Research Organisations” above) there are a vast variety of HEIs in Germany. The following will focus on public universities as research intensive public HEIs.
Research as a Statutory Task of HEIs
The division of competences between Bund and Lander regarding HEIs has long been a controversial subject. Before the federalism reform (a general re-structuring of competences in the federal system begun in 2006) the Bund had the competence to pass framework legislation (former Article 75 GG) and Bund and Lander had to cooperate regarding research funding. The removal of federal competences regarding HEIs during the federalism reform had been triggered by a decision of the German constitutional Court (Bundesverfassungsgericht) in which the court declared that the Bund had overstepped its competences. However, Article 125a GG ensures that framework legislation already enacted remains valid, unless the Lander deviate from it. In the field of HEIs, the relevant framework legislation is the Framework Act for Higher Education (Hochschulrahmengesetz, HRG). The annulment of this act has since been discussed but never realised. The HRG thus remains the relevant federal legislation.
Public HEIs are, according to § 58 HRG, bodies governed by public law as well as institutions of the state. According to § 2(1) HRG, HEIs ‘shall contribute to the fostering and development of the arts and sciences through research, teaching, studies and continuing education’. Regarding research in HEIs § 22 HRG provides that
the purpose of research at institutions of higher education shall be the acquisition of scientific knowledge and the scientific underpinning and development of teaching and study. Research at institutions of higher education may, subject to the specific role of the institution concerned, relate to any academic discipline and to the practical application of scientific findings, including the potential impact of such application.
There are no quantitative restrictions in the HRG as to the amount of externally funded research that can be carried out by an HEI as long as ‘the fulfilment of the institution’s other functions and the rights and obligations of other persons are not impaired and [...] adequate consideration is given to commitments that might result from the project’ (§ 25(2) HRG). The results of such research should generally be made publicly available ‘within a reasonable period of time’.
At state level the provisions are similar. The Bremen HEI Act (Bremisches Hochschulgesetz), for example, contains almost identical provisions to § 2(1), § 22 and § 25(2) HRG in § 4(1), § 70(1) and § 74(2) respectively. The Berlin HEI Act (Berliner Hochschulgesetz) contains very similar provisions to § 2(1) and § 22 HRG in § 4(1) and § 37(1) respectively. With regards to externally funded research, it simply refers to § 25 HRG in its § 40. The Bavarian Higher Education Act (Bayerisches Hochschulgesetz) contains similar provisions to § 2(1), § 22 and § 25(2) HRG in Articles 2(1), 6(1) and 8(1-2) respectively. The Act on HEIs in Baden-Wurttemberg (Gesetz uber die Hochschulen in Baden-Wurttemberg) contains similar provisions to § 2(1), § 22 HRG in § 2(1), § 40(1) respectively. Regarding § 25(2) HRG the corresponding provision is contained in § 41(1). In contrast to the federal provision, which only entitles staff to conduct externally funded research, this provision declares the active search for external funds as one of the official duties of research staff. Apart from this, the provision is similar to the relevant provision in the HRG. There is an additional provision on transparency as regards Drittmittel in § 41a.
It can thus be established that research, including applied research is a statutory task of public HEIs and that there do not seem to be any specific restrictions as to the amount of commercial research undertaken, so long as HEIs can still fulfil the tasks assigned to them and, in the case of Baden-Wurttemberg follow the requirements on transparency. There also cannot (theoretically) be too much external or internal steering, as Article 5(3) GG provides that the ‘arts and sciences, research and teaching shall be free’. This provision essentially makes academic freedom a human right and thus gives it a very strong protection in Germany.
-  BVerfGE 111, 226, decision of 27 July 2004 (Junior Professor). Leaving the majorityof the funding competences to the Lander then caused financial difficulties (Tagesschau.de (2014) Finanzierung der Hochschulen—Fur Unis mehr Forderung vom Bund (Englishtranslation: Funding of higher education institutions—More funding from the federalgovernment for universities). tagesschau.de, 16 July 2014 http://www.tagesschau.de/inland/hochschulbildung-100.html. Accessed 16 July 2014) which in turn led to a change of Article 91bGG in December 2014 which now provides for more options of the Bund to fund HEIs (includinginstitutional funding) on the basis of agreements as elaborated upon above (section “TheGovernmental Structure”).
-  Seckelmann 2010, pp. 227, 229 seq, 232 seq.
-  The provisions of the federal states in which the universities chosen for the empirical studyare located shall be looked at here as examples. On the choice of universities see Chap. 5 below.