In budgetary law, grants are understood to mean (voluntary) services by the federal government to positions outside the federal administration or services by the states to positions outside the respective state administration to fulfill certain purposes.
The state ( federal or country has) on the performance of these tasks, which are financed with the grants, a significant interest, which can not or not sufficiently satisfied in some other way ( principle of subsidiarity ). The requirement of economic efficiency and thrift, as well as other budgetary principles, and as an exception in the case of predominantly project funding by public donors or generally in the presence of institutional funding, the prohibition of betterment , which are anchored in public budget law. The ancillary provisions to the Access Directive are currently still in dispute and not in force.
The legal basis is estimate ) and ( approval ) of the Federal Budget Code (BHO) and the budget regulations of the federal states (LHO) and the respective implementation and administrative regulations (VV-BHO or VV-LHO). The regulations of the states in their state budget regulations and administrative regulations basically correspond to the regulations of the federal government. The funds for the grants are made available in the annual budget laws (expenditure and commitment authorizations ).(
Donations are only approved in response to a written application, usually by means of written administrative acts (donation notices), and in exceptional cases also by means of a public law contract . It is mandatory to specify in which form and in which period the proof of interim or end-use is to be provided (see e.g. ANBest-P). The authorities are obliged to request and check usage records.
Unlawful grant notices can be withdrawn ( VwVfG of the federal or state governments). Legitimate grant notices can be revoked ( VwVfG of the federal or state governments). In particular, a grant notification can be revoked with effect for the past if the purpose pursued with the grant is not or no longer achieved or if the funds are not used up immediately after their disbursement or if the grant recipient does not meet a condition or does not meet a deadline after setting a deadline ( (3) VwVfG). The legal consequences result from VwVfG. Overpaid funds are to be reimbursed with interest . Possibly. Late interest may be charged.
The authorities may approve grants within the framework of these funds. The purposes of funding are generally specified in funding guidelines. These are administrative regulations from which no legal entitlement to approval can be derived. The authorities are bound by the principle of equal treatment when awarding them . The administrative practice leads to a self-commitment of the administrations , which can of course be changed at any time. Most of the time, the greyhound principle applies . If the funds are exhausted, further grant applications must be rejected.
In order to achieve uniform administrative action, the finance ministries issued administrative regulations BHO, which primarily contains procedural regulations for the authorities. They are published. The authorities are required to base the grant notices on general ancillary provisions, which can be found in the annexes to the administrative regulations (e.g. general ancillary provisions for grants for project funding - ANBest-P).
Grants include earmarked grants , assignments, debt servicing and other non-repayable benefits, as well as earmarked loans and other conditionally or unconditionally repayable benefits.
In particular, benefits in kind, benefits based on legal provisions, reimbursement of expenses , fees based on contracts and membership fees are not included in budgetary terms .
Types of grant
- Institutional funding:
- Grants to cover all or an indefinite part of the expenses of a grant recipient.
- Although the grant recipient applies for new funding every year and has to re-approve it from the grantor, in practice institutional funding is like a kind of permanent obligation for the public sector.
- A typical example of institutional funding is the basic funding of certain research institutions, e.g. B. "Blue List institutions" of the Leibniz Association , research institutions of the Helmholtz Centers , Max Planck Society , European Movement Germany and Fraunhofer Society .
- Project funding
- Grants to cover the recipient's expenses for individual projects, which can be defined in terms of subject matter, content and finance.
The donor can exert greater influence on the content of the recipient's work than with institutional funding. In addition, there is no consequential financial risk for the donor after the funding period has expired.
One distinguishes between
- Share financing
- The grant is calculated as a share or percentage of the recognized eligible expenses; however, a fixed maximum amount may not be exceeded. If the recipient of the grant achieves savings or higher income than was initially foreseeable, the grant must be repaid on a pro rata basis.
- Shortage financing
- The amount allocated is the amount that closes the gap between the recognized eligible expenditure on the one hand and the recipient's own funds and other income on the other. A maximum amount is also set here. Savings or additional income lead to the repayment of the grant in full.
- Fixed-price financing
- The grant takes the form of a fixed amount. This amount remains with the beneficiary in full, even in the event of savings and higher income; unless its total expenditure is below the grant amount.
- All expenses are financed for the beneficiary; a fixed maximum amount may not be exceeded. Every increase in income or expenditure reduction by the recipient of the grant reduces the grant by the corresponding amount.
Forms of financing
The grant can be:
- absolutely repayable grant ( loan )
- conditionally repayable benefit ( risk )
- non-repayable grant ( grant )
Course of a grant procedure
The grant procedure comprises 8 steps.
|Estimate||Estimation according to § 23 and § 44 BHO|
|Application review and review note|
|Decision on the permit||
|Announcement of the decision||Administrative act with information on legal remedies|
|Payment of the grant||according to resilience|
|Examination of Claims||Are there claims against the grant recipient?|
|Success control||Checking the success of the donation|
Grant notification / approval decision
The decision of the licensing office is announced in a grant notice, also known as the approval notice. It has at least the following components:
|Data of the beneficiary||VV No. 4.2.1 to § 44 BHO|
|Kind of donation||VV No. 4.2.2 to § 44 BHO|
|Grant amount||VV No. 4.2.2 to § 44 BHO|
|Type of funding||VV No. 4.2.4 to § 44 BHO|
|Form of financing||VV No. 4.2.4 to § 44 BHO|
|Purpose of the grant||VV No. 4.2.3 to § 44 BHO|
|Scope of recognized eligible expenditure||VV No. 4.1 to § 44 BHO|
|Reason for rejected parts of the application||§ 39 VwVfG and VV No. 4.1 to §§ 44 BHO|
|Designation of the general ancillary provisions to be observed||VV No. 4.2.9 to § 44 BHO|
|Main contact for the donation in the case of several participants||VV No. 4.2.6 to § 44 BHO|
|Type of payout according to finality||VV No. 7.1 to §§ 44 BHO|
|Legal appeal||Section 37 VwVfG|
Information in individual cases
Depending on the constellation, it may be necessary to provide additional information:
|Individual case||information||Legal basis|
|Receipt of subsidies||Subsidy-relevant processes and disclosure obligation||Section 3 SubvG|
|institutional funding||Request a reconciliation of income and expenditure||VV No. 4.2.8 to § 44 BHO|
|Acquisition of land or rights||Reservation in favor of the federal government||VV No. 5.6.1 to § 44 BHO|
|refundable benefit||Statements on repayment, interest, reimbursement claims||VV No. 5.6.3 to § 44 BHO|
|Acquisition of property rights||Reservation in favor of the federal government||VV No. 5.6.3 to § 44 BHO|
|Writing a scientific paper||Applicability of the work results for the general public||VV No. 5.6.4 to § 44 BHO|
|Participation of technical departments||Regulating the way||VV No. 5.6.5 to § 44 BHO|
|Institutional funding||Condition of the application of federal budget laws||VV No. 5.6.7 to § 44 BHO|
|Critical cases||Reservation of revocation||VV No. 5.8 to § 44 BHO|
|multi-level allocation ratio||Permission to forward the funding||VV No. 12.1 to § 44 BHO|
Obligations of the grant recipient
The recipient of a donation has to fulfill various obligations. This includes compliance with the principles of proper bookkeeping, compliance with the procurement regulations , compliance with operating obligations and compliance with publication regulations. He must cooperate truthfully with the licensing authority - this includes the obligation to notify significant changes, an inventory obligation , the keeping of participant lists , compliance with reporting obligations and compliance with the retention obligation . On- site controls can be carried out.
Proof of use
After the project has been completed, the recipient of a grant must provide a proof of use. This includes a factual report, numerical evidence of the expenditure of funds and a confirmation of compliance. The factual report must contain at least the following information:
- Use of the grant
- Report on achieved goals in relation to the specifications
- Presentation of the necessity and appropriateness of the work done
The following attachments can be included:
Proof of use check
The proof of use check takes place in 4 steps:
- cursory examination of the assertion of claims against the beneficiary
- in-depth examination
- Creation of an audit report
- Informing the beneficiary of the payment or revocation
A revocation can be made according to § 49 VwVfG if the funds have not been used according to the purpose, a condition has been violated or a violation of the prohibition of improvement. After the hearing according to § 28 VwVfG, further steps can be initiated and it will be checked whether a reimbursement with interest can be claimed.
The audit of the orderly administration is carried out by the audit office .
- Volker Mayer: Grant law for practice in the federal, state and local governments , manual for granting authorities and grant recipients, Verlag Wallhalla, 2019
- Erwin Krämer / Jürgen Schmidt / Gerhard Köhler: Grant Law - Grant Practice (Commentary) , loose-leaf collection, 2014
- Hans-Lothar Endell / Peter Frömgen / Frank Albrecht, Funding Handbook North Rhine-Westphalia - Grant Law and Procedure , Verlag W. Kohlhammer, loose-leaf collection, as of January 2017
- Norbert Dittrich, Federal Budget Code (commentary) with a focus on grants, Hüthig Jehle Rehm publishing group, loose-leaf collection, commentary on §§ 23, 44 and 91 BHO
Laws and regulations
- Federal Budget Code (BHO): full text
- Administrative regulations for the BHO (VV-BHO): full text
- Funding guidelines: full text
- Funding catalog: text
- Funding opportunities from the European Union, the federal government and the federal states: Funding database
- Funding aids: text
- The public budget system: BMF federal budget 2008
- The relationship between donation and tax incentives: film document
- VV No. 5 to § 44 BHO: Part of the grant notices through the respectively applicable General Ancillary Clause No. 1.1 ( Memento from May 17, 2013 in the Internet Archive ): "The grant is to be used economically and sparingly."
- General ancillary provisions for grants for project funding on a cost basis (ANBest-P costs) No. 1.3. Retrieved October 9, 2019 . "Are total expenditure of the beneficiary mostly from grants the government denied"]
- General ancillary provisions for grants for institutional funding (ANBest-I) No. 1.3. Retrieved October 9, 2019 . "The grant recipient may not position his employees better than comparable federal employees."
- on retrieval guidelines: Norbert Dittrich, Federal Budget Code (comment) with focus on grants , 2017
- Bettina Heinzmann: Fundamentals of budget law for grants as of 03/2017
- Attention: s. a. Dittrich on the directive on demand, VV-BHO No. 7 is not yet in force!