Die Studienförderung durch Begabtenförderungswerke in Deutschland

In Germany, financial and non-material support for highly talented students is provided by 13 privately formed foundations (»Stiftungen«) that are funded by the Federal Ministry of Education and Research (so-called: »Begabtenförderungswerke«). This gives rise to a large number of legal questions, which this paper attempts to answer comprehensively. Among these 13 foundations, some have a political background. These are regularly in the spotlight of public debate. This is currently the case for the AfD-affiliated Desiderius Erasmus Foundation, which is seeking to become one of the foundations receiving funding, but yet has not been successful in court. This may change due to the results of the federal election of 2021. The lack of clear legal regulations for inclusion in the circle of supported institutions is questionable from a constitutional point of view. The principle of »Vorbehalt des Gesetzes« calls for a legal basis. In addition, however, there is the fundamental question of the legal protection of applicants. Despite the public proximity, there is no action under administrative law permissible. Nevertheless, the proximity of the state and its financing result in an indirect obligation to the awarding foundations. General civil law claims can also arise, for example, from the General Act on Equal Treatment but also Sec. 242 German Civil Code. However, it should be noted that a change in the framework conditions may lead to a change in the legal classification. Finally, the article deals with the legal relationship between the organization and the scholarship holder after the scholarship has been awarded, i. e. during the scholarship period. The author is convinced that the legal basis for the payments to the scholarship holders, taking into account the case-law of the Federal Court of Justice (BGH), ultimately results from the foundation law regulations of §§ 80 ff. German Civil Code.