Third-Party Funding Statutes

Statutes of Hamburg University of Technology on the use of third-party funds and the implementation of third-party funded projects

as of 01.02.2018

On the basis of § 85 Para. § Section 77 (VII) of the Hamburg Higher Education Act (HmbHG) of 18 July 2001 (HmbGVBL. p. 171), last amended on 16 November 2016 (HmbGVBl. p. 472), the Academic Senate of the Hamburg University of Technology adopted the following statutes on the acquisition and use of third-party funds on 22 November 2017.

Preamble

Within the scope of its possibilities, the laws and these statutes, the TUHH supports and promotes the acquisition of third-party funds and the implementation of projects with third-party funds.

With the aim of increasing the quality of research and teaching, private and public funds are to be raised in addition to the state funds. In addition to grants from DFG, state and federal funds, this concerns in particular funds from the European Union as well as funds from the private sector including donations and sponsoring for research.

These bylaws regulate the handling of third-party funding of any origin and are intended to contribute to creating transparency and legal certainty in the application, implementation and management in order to avoid the appearance of unfair intentions or cross-subsidisation both in the funding of research projects by industry and all other grants by public and private third parties, and serve to ensure process clarity and transparency in the context of such services. It thus safeguards academic freedom and serves to protect employees.

§ 1 – Scope of Application

These statutes apply to the acquisition, administration and use of public and private third-party funds by authorised persons at the Hamburg University of Technology, hereinafter referred to as TUHH or University. Insofar as third-party funds are not administered at the University due to special rules, e.g. due to the cooperation mandate with Tutech Innovation GmbH or in the special account procedure pursuant to § 77 IV HmbHG, only the rules on the obligation to notify third-party funding projects shall apply in this respect. The authorised person is free to use other service providers in the special account procedure.

§ 2 – Entitled Persons 

Professors of the TUHH and academic staff with doctorates have the right to conduct third-party funded research in accordance with § 77 HmbHG. Third-party funded research is a service task; the obligation to fulfil the other service tasks remains unaffected. The persons entitled to carry out third-party funded projects are referred to below as "entitled persons".

§ 3 – Definition

1. Third-party funds within the meaning of these Statutes are monetary, material and other contributions by third parties under unilaterally or mutually binding contracts or a grant from the Federal Government or the European Union, which are made available to the University for the fulfilment of its tasks in addition to the budgetary funds:
   1. Cash and non-cash grants or other benefits (e.g. for development, further education, other services) These funds are granted to the university for the purposes of research and teaching without any consideration being agreed or expected in return.
Material, financial and scientific reports - so-called proofs of use - are no reciprocate.
   2. Large-scale equipment
      Land funds for large-scale equipment are also third-party funds within the meaning of these Statutes
   3. Cash benefits from contracts
      are reciprocal contracts between third-party funders and the university in which the type, scope and timing of performance and consideration are specified (e.g. third-party funding agreements, cooperation agreements, contract research, services, sponsoring).
   4. Unilaterally binding contracts
      Grants for a specific purpose are deemed to exist if no consideration in the sense of an exchange relationship is agreed for the grant, but the funds are made available to support a specific project, e.g. donations, endowed professorships, gifts.
   5. Donations
      In the case of donations, there may be no earmarking, whereby acceptance and use is only permissible if it pursues charitable purposes in accordance with §§ 51 ff. AO. A donation receipt will be issued if the necessary tax requirements are met.
   6. Loans are not third-party funds
      Loans from industry, foundations and the DFG that are only made available to the university for a certain period of time are not considered third-party funds, but also require a written contractual basis. In cases (d), (e) and (f), the Presidential Administration must be informed immediately in order to regulate the contractual basis.
2. Third-party funders are natural or legal persons who grant the university monetary or in-kind contributions for the purpose of research and teaching.
3. Cash payments shall be made exclusively to the TUHH account. Payment into private accounts is not permitted. If it is requested that the administration of funds by the university pursuant to § 77 IV HmbHG (special account procedure) be dispensed with, provided this is compatible with the conditions of the donor, sentence 1 shall not apply in this case.

§ 4 – Principles

1. The administration of third-party funds shall be carried out by the University in accordance with § 7 of these Statutes.
2. The staff of the administration and the staff of the institutes work together in a cooperative and supportive manner during the implementation of externally funded projects; the administration provides the complete commercial and financial project-mapping, the institutes provide their project-specific professional tasks. Further information can be obtained from the Guidelines for the Processing of Third-Party Funding
3. The respective current guidelines of the third-party funding bodies for the implementation of third-party funding projects as well as the applicable guidelines for ensuring good scientific practice at the university are to be observed by the entitled persons.
4. The Presidential Board of the TUHH may issue general rules of responsibility for the administration of third-party funded projects, taking into account the requirements of the contracting authorities.
5. The University shall only accept third-party funding that complies with the principles and principles of these Statutes. These have been laid down in detail as follows: 
   1. Transparency Principle: The persons authorised by the Presidential Board may request information and inspect the documents at any time during a third-party funding project.
   2. Documentation Principle: Agreements and arrangements, in particular on agreements of mutual services, shall be documented in writing.
   3. Four-eyes Principle: The management of third-party funds is subject to the four-eyes principle, i.e. contracts, invoices, etc. must always be signed by the authorised person together with the person responsible in the third-party funds unit or on the administrative side.
   4. Separation Principle: The acceptance and use of third-party funds of any kind must not be dependent on past, present or future turnover transactions, e.g. orders, recommendations and the like. Third-party funds must not be intended to influence procurement decisions. In particular, no conflict of interest may be established that is contrary to the ethos of science with integrity and guided by knowledge.
   5. Budget Accuracy and Clarity: Third-party funds are booked without gaps in accordance with the applicable accounting principles, e.g. balance sheet accuracy, imparity principle and the provisions of the German Commercial Code (HGB), in the accounts set up for this purpose.
6. The implementation of parts of a third-party funded project as secondary employment is not permitted (splitting prohibition). Secondary employment does not constitute third-party funded research within the meaning of the Hamburg Higher Education Act or these Statutes and must be reported to the Human Resources Department.
7. If eligible persons leave the University, the current third-party funding projects as well as objects procured from them and rights of use to results achieved from the third-party funding projects may be transferred to the new employer, provided the provisions of the third-party funding provider do not conflict with this. Residual funds from third-party funding projects completed by the university remain with the university.
8. Third-party funded projects started by the entitled person before retirement may be completed by him/her. In addition, the application for new third-party funding projects can be approved by the Chancellor upon request and with the consent of a person responsible for the cost centre, e.g. the Head of Institute of the TUHH. A claim to remuneration against the university is not established by this activity.
9. Contracts with private clients (economic activity) may only be concluded in compliance with the Union Framework for State Aid for Research, Development and Innovation if the contract remuneration is at least cost-covering according to § 10 of these Statutes and includes an appropriate profit margin or has been calculated according to market price. The implementation of the economic activity may only be agreed and commenced after approval by the university on the basis of the submitted documents (see Guideline: Separation Accounting).
10. In principle, contract research projects are to be handled by the subsidiary Tutech Innovation GmbH. As a rule, the sale of project results is subject to VAT. The decision on economic activity is made by the university and offers support in calculating an appropriate market price. Corresponding circulars and working templates are published by this office.
11. Research results are published provided that third-party rights do not conflict with this.
12. The Presidential Board reserves the right to reject third-party funded projects that evidently violate ethical or humanitarian principles and cannot be reconciled with Article 5 III of the Basic Law. In difficult individual cases, the Committee for the Safeguarding of Good Scientific Practice shall decide in accordance with § 13 of these Statutes.

§ 5 – Display of the application for a project 

1. The entitled person shall inform the application-processing unit of the Third-Party Funding Department at the earliest possible time, submitting all existing and required documents, about the planned acquisition of third-party funding as well as about ongoing preliminary negotiations with the third-party funding provider. Applications for third-party funding must be submitted through this department. In the case of EU third-party funding applications, Tutech Innovation GmbH must also be commissioned. Applications submitted via online procedures must also be reported to the office processing the application. The obligation to notify according to § 77 III S. 1 HmbHG is thus fulfilled.
2. In the case of strategic projects, e.g. Collaborative Research Centres, Research Training Groups, DFG Research Units, Clusters of Excellence or comparable projects, the Presidential Board or the member of the Presidential Board responsible for research should be involved from the conceptual phase.
3. If applications are made for third-party funding projects that have structural effects, the institutes and departments concerned must be involved.
4. The project leaders and the application processing team endeavour to obtain the best possible funding for all applications, including possible project lump sums for indirect costs (so-called overhead). The Presidential Board reserves the right to reject projects.
5. Participation in networks of any kind shall be notified to the body processing the application, provided that this requires a written agreement.

§ 6 – Cooperation Agreements

1. Legal contract negotiations and the legal review of draft contracts, which are to be submitted as an accessible document (no pdf file), are carried out by the Legal Office/Third Party Funding Unit. Model contracts will be made available in individual cases. In order to be able to achieve the best possible negotiation result, the entitled party is requested to provide all documents necessary for the negotiation, e.g. the draft contract of the third party, in good time and to inform about deadlines agreed between the cooperation partners.
2. EU cooperation agreements for research should be sent to Tutech Innovation GmbH and the Third Party Funding Department for review.

§ 7 – Administration of Third-Party Funds

1. The administration of third-party funds as well as the financial processing shall be carried out by the university; § 77 para. 4 HmbHG shall remain unaffected.
2. The use of third-party funds shall be determined by the guidelines of the funder. These shall take precedence over state administrative regulations, provided they do not conflict with statutory provisions or provisions of collective agreements or the principles set out in § 4 of these Statutes.
3. Third-party funds shall be administered and used in accordance with the provisions of the Hamburg State Budget Code, taking into account the following principles: necessity, thrift and economic efficiency, unless the guidelines of the third-party funding provider stipulate otherwise. Income and expenditure of third-party funds shall be reported accordingly in the university budget.
4. Unless otherwise stipulated by the third-party funding body, the objects procured in the third-party funding project shall become the property of the university.
5. Financial income from third-party funding projects is available to the respective institutes of the University for the fulfilment of their tasks. The income as remuneration for the use of the university infrastructure, personnel and material resources shall be available to the university for the fulfilment of its tasks.
Financial income from third-party funding projects administered by Tutech Innovation GmbH may only be used for tasks of the respective institutes of the TUHH.

§ 8 – Personnel in Third-Party funded Projects

1. The Act on Fixed-term Employment Contracts in Science (Wissenschaftszeitvertragsgesetz - WissZeitVG) in the currently valid version shall apply to the academic staff to be employed at the University from third-party funds, including the regulations under labour law and collective bargaining law as well as those existing at the University.
2. The Part-Time and Fixed-Term Employment Act (Teilzeit- und Befristungsgesetz), including the regulations already listed under (1), shall apply to non-academic staff financed by third-party funds.
3. The necessary employment contracts shall be drawn up by the Human Resources Department. The Human Resources Department must be involved as early as possible in order to ensure that work can commence on the desired date of recruitment. The circulars of the Human Resources Department are to be observed.

§ 9 – Acquisition

1. The current provisions of public procurement law apply.
2. An explicit or implicit link between the granting of funds by third parties and an obligation on the part of the university to purchase certain products is not permissible.
3. TUHH staff must observe and comply with the Anti-Corruption Policy; for civil servants, the special provisions of the Civil Servant Status Act (BeamtStG) and the State Civil Servant Act apply.

§ 10 – Economic Activity - Implementation of Separation Accounting at the TUHH 

The TUHH is a public corporation. Within the framework of the performance of its sovereign tasks, e.g. research activities from third-party funds, there is no tax liability. In addition, universities are permitted to engage in economic activities. In these cases, the TUHH is subject to tax liability.

Support in the preliminary calculation as well as the implementation of the economic activity on the basis of the submitted documents is provided by the university office entrusted with this task; the activity may only be commenced after approval by the university office.

If an economic activity is intended, the following procedure applies at TUHH:

Within the framework of its annual financial statement, the TUHH has to prove that no subsidy from the state grant has occurred in economic projects. Personnel who are financed from state funds must therefore clearly record the working time in economic projects. This is only possible through time records. This also applies in particular to the case where TUHH personnel are deployed in contract research projects at Tutech Innovation GmbH.

To prove that the project has covered its costs, a post-calculation is prepared annually and after completion of the project, taking into account the costs incurred and the hours actually worked on the project.

The allocation of the profit mark-up and the share of overheads is decided annually on the basis of a current evaluation of the cost and activity accounting.

§ 11 – Scientific Lecturing or Consulting Activities

If this activity is not carried out by the employee as a secondary activity, the lecturer/consultant may accept an appropriate fee on behalf of the university. The fee shall be paid to the University. If an employee applies for the exercise of this activity as a secondary activity, the provisions on secondary employment law shall apply.

An application is accepted by the personnel department.

§ 12 – Research and Teaching Allowance

In the case of third-party funded projects from private donors, which are generally administered by Tutech Innovation GmbH (§ 4 para. 10 of these statutes), the agreement of a research and teaching allowance is possible in accordance with the legal regulations of the Hamburg Salary Act (currently § 39 HmbBesG).

The beneficiary notifies the TUHH of the agreed allowance so that it can be collected by Tutech Innovation GmbH and paid out by the University.

§ 13 – Ethical Issues

The assessment of ethical issues in third-party funded projects or scientific projects is the responsibility of the expertise of the committee for ensuring good scientific practice and is forwarded to it. If desired, the internal audit or another person from the administration can be consulted in an advisory capacity.

§ 14 – Entry into Force

These statutes shall enter into force on the day following their publication at the TUHH. It replaces the TUHH Statutes for the Implementation of Third-Party Funding Projects of 27 February 2008 as well as the amendment to the Third-Party Funding Statutes of 21 November 2010.

Hamburg, 01. 02. 2018 

Hamburg University of Technology

Hamburg, March 22, 2023

Hamburg University of Technology

This version of the doctoral regulations of the Hamburg University of Technology is not legally binding. Only the German version is legally binding.