The background

1. National and regional ombudsmen in the European Network of Ombudsmen may ask the European Ombudsman for written answers to queries about EU law and its interpretation, including those which arise in their handling of specific cases.

2. On 9 September 2021, the Regional Ombudsman of Bavaria, Germany, submitted such a query to the European Ombudsman. The query concerns the application of EU State aid rules in the context of education and research activities.

3. The European Ombudsman considered it useful to consult the European Commission on the issues raised by the Bavarian Ombudsman and requested its opinion on the query. The Commission provided its opinion on 29 October 2021. It was sent to the Bavarian Ombudsman, who informed the European Ombudsman, on 10 December 2021, that he had concluded his inquiry based on the Commission’s reply.

The case pending before the Bavarian Ombudsman

4. A prospective student of the Master of Social Management at the University of Applied Sciences Munich, Germany, turned to the Bavarian Ombudsman, after the course was not offered in the academic year 2021/2022.

5. The University explained to the Bavarian Ombudsman that the course is entirely financed by fees paid by participants and, since the number of participants was too low this year, it could not offer the course in a cost-efficient manner. The University further explained that it is not able to receive subsidies to finance the programme due to EU State aid rules.

6. The Bavarian Ombudsman contacted the European Ombudsman to obtain clarifications of the EU State aid rules. The Bavarian Ombudsman was concerned that the rules may result in the study programme no longer being offered and pointed out that it concerns the health care sector, which, he said, is already suffering from a shortage of qualified young professionals.

The European Commission's opinion

7. In its opinion, the Commission gave an overview of the notion of ‘State aid’, as defined in Article 107(1) of the Treaty on the Functioning of the EU and further elaborated on its Notice on the notion of State aid,^[1] in particular in the context of education and research activities.

8. The Commission stated that, based on the information contained in the query by the Bavarian Ombudsman, it seems that the specific educational course provided by the Bavarian university is entirely financed by fees paid by participants. In such a case, this educational service carried out by the Bavarian University could be regarded as an economic activity and the EU rules on State aid would be applicable to the educational service offered.

9. However, the Commission emphasised that it is not in possession of a complete set of information concerning the educational activities carried out by the University of Applied Sciences Munich nor on its financial structure. Therefore, the Commission is not be in a position to make any assessment on the qualification of the educational services carried on by the Bavarian University, and particularly the Master of Social Management as non-commercial or commercial services, and on the application of State aid rules.

10. The Commission underlined that, even if financing that training programme with public money would be considered as State aid, depending on how the measure is designed, it could still be authorised or block exempted.

The European Ombudsman's conclusions

In light of the opinion, and noting that the Bavarian Ombudsman had closed his inquiry based on that opinion, the European Ombudsman considers that the issues raised in the query have been adequately clarified. The European Ombudsman therefore closes the query.

The Bavarian Ombudsman and the European Commission will be informed of this report.

 

Rosita Hickey

Director of Inquiries
Done in Strasbourg on, 13/12/2021

 

[1] Commission Notice on the notion of State aid as referred to in Article 107(1) of the Treaty on the Functioning of the European Union, C 262, 19.7.2016, p. 1.