Skip to main content
SpringerLink
Log in
Book cover

Higher Education Institutions in the EU: Between Competition and Public Service pp 47–113Cite as

Higher Education Institutions and EU Competition Law

  • Chapter
  • First Online:

  • 437 Accesses

Part of the book series: Legal Issues of Services of General Interest ((LEGAL))

Abstract

This chapter conducts an in-depth legal doctrinal assessment of potential competition law constraints on HEIs. It thereby lays the ground for a detailed discussion of competition law effects on research in HEIs in three Member States in the subsequent chapters. First, the concept of ‘undertaking’ and services of general economic interest will be assessed to determine how far HEIs might fall under the competition law provisions in the first place. It will be shown that this becomes increasing likely the more commercial elements an HEI system adopts. Then, possible constraints arising from the application of Article 101 TFEU (prohibition of anti-competitive collusion), Article 102 TFEU (prohibition of abuse of dominance), Regulation 139/2004/EC (merger control) and Article 107 TFEU (prohibition of state aid) will be explored. We will see that, whilst the application of the competition rules might occasionally aid ‘consumers’ or HEIs themselves, they can also lead to detrimental effects in cases where the economic competition and state aid law provisions might clash with the public service nature of the teaching and research activities of HEIs.

This is a preview of subscription content, log in via an institution.

Chapter
USD   29.95
Price excludes VAT (USA)
  • Available as PDF
  • Read on any device
  • Instant download
  • Own it forever
eBook
USD   99.00
Price excludes VAT (USA)
  • Available as EPUB and PDF
  • Read on any device
  • Instant download
  • Own it forever
Hardcover Book
USD   129.99
Price excludes VAT (USA)
  • Durable hardcover edition
  • Dispatched in 3 to 5 business days
  • Free shipping worldwide - see info

Tax calculation will be finalised at checkout

Purchases are for personal use only

Learn about institutional subscriptions

Notes

  1. 1.

    A condensed and much earlier version of this chapter has been published as Gideon 2012.

  2. 2.

    T-488/11 Sarc (state aid).

  3. 3.

    Similar to Sauter 2015, p. 9 the term is used here widely comprising utilities and more social services such as health, education and social welfare services.

  4. 4.

    Schiek 2012, p. 25; Sauter p. 110 seq.

  5. 5.

    For more on liberalisation tendencies in the Member States, see Vincent-Jones 2006, p. 358 seq.

  6. 6.

    This is in line with critical political economist assumptions that the European integration project became more neo-liberal in the last quarter of the 20th century and can also be seen as a functional spill-over . For more on integration theory, see Chap. 1, Sect. 1.3.4 above.

  7. 7.

    For more on the inclusion of public services into EU competition and internal market law see Steyger 2002, p. 275; Prosser 2005, 2010; Neergaard 2011, p. 174 seq; Chalmers et al. 2014, Chapter 25 (online resource), p. 1 seq; Sauter 2015, pp. 12, 18, 125, 222 seq, 228, 233, 238.

  8. 8.

    In the sphere of the utilities this had led to EU level sectoral approaches. An extreme example of liberalisation in this respect is Directive 2008/6/EC amending Directive 97/67/EC with regard to the full accomplishment of the internal market of Community postal services OJ [2008] L 52/3, which, in Article 1(8) provides that all special and exclusive rights shall be abandoned in postal services. In rare cases, liberalisation has, instead of with national regulation, been met with regulatory failure and the EU legislator intervened due to the cross-border nature of the service as in the case of Regulation 531/2012 on roaming on public mobile communications networks within the Union OJ [2012] L 172/10. See further on the relation between liberalisation, regulation and application of competition law as well as on the sectoral approaches Sauter 2015 p. 12, 32 seq, 125, 133 seq, 222, 225 seq, 231 seq.

  9. 9.

    On the latter, see Newdick 2007.

  10. 10.

    Additionally, the question has been raised by Chalmers et al. 2014, Chapter 25 (online resource), p. 36 seq with further references, if liberalisation has actually practically led to more competitive markets and, in effect, to greater consumer welfare or if any such results may have been due to other factors such as technical advances.

  11. 11.

    Prosser 2005, pp. 544, 549, 560; Prosser 2010, p. 315 seq, 335 seq.

  12. 12.

    C-41/90 Höfner (Judgment of 23 April 1991, EU:C:1991:161) para 21.

  13. 13.

    118/85 Commission v Italy (Judgment of 16 June 1987, EU:C:1987:283) para 7.

  14. 14.

    Most commonly defined as neither the public nor the private sector, the third sector (also referred to as, for example, voluntary sector or community sector) is made up of organisations with specific charitable goals which operate on a not-for profit basis. See Wendt and Gideon 2011, p. 255.

  15. 15.

    On the concept of ‘undertaking’ see Steyger 2002, p. 276; Sauter 2008, p. 181 seq; Swennen 2008/2009, p. 263 seq, 278 seq; Aicher et al. 2009, para 51, 56 seq, 67 seq; Sauter and Schepel 2009, p. 75 seq, 80 seq, 95, p. 124 seq; Chalmers et al. 2014, p. 999; Jones and Sufrin 2014, p. 127 seq; Sauter 2015, p. 117.

  16. 16.

    C-364/92 Eurocontrol (Judgment of 19 January 1994, EU:C:1994:7) para 19 seq, in particular paras 30 and 31, C-343/95 Diego Cali v SEPG (Judgment of 18 March 1997, EU:C:1997:160) para 16 seq, C-113/07 P SELEX (Judgment of 26 March 2009, EU:C:2009:191) para 65 seq, C-138/11 Compass (Judgment of 12 July 2012, EU:C:2012:449), SA.34646 The Netherlands E-procurement platform TenderNed para 67 (the latter is currently being challenged in front of the General Court (T-138/15 Aanbestedingskalender)).

  17. 17.

    For more on the principle of solidarity in competition law see Boeger 2007; Ross 2007, p. 1067 seq.

  18. 18.

    C-159, 160/91 Poucet et Pistre (Judgment of 17 February 1993, EU:C:1993:63) para 18 seq, C-218/00 Cisal (Judgment of 22 January 2002, EU:C:2002:36) para 38 seq, C-264, 306, 354, 355/01 AOK Bundesverband (Judgment of 16 March 2004, EU:C:2004:150) para 45 seq, C-205/03 P FENIN (Judgment of 11 July 2006, EU:C:2006:453) para 25 seq, Commission Decision 2015/248/EU Measures implemented by Slovak Republic for Spoločná zdravotná poisťovňa, a. s. and Všeobecná zdravotná poisťovňa, a. s. OJ [2015] L 41/25.

  19. 19.

    C-244/94 FFSA and others (Judgment of 16 November 1995, EU:C:1995:392) para 15 seq, in particular para 22, C-67/96 Albany (Judgment of 21 September 1999, EU:C:1999:430) para 77 seq.

  20. 20.

    Opinion of the Advocate General in C-475/99 Ambulanz Glöckner (Judgment of 25 October 2001, EU:C:2001:577) para 72.

  21. 21.

    C-205/03 P FENIN, Decision 2015/248/EU para 93.

  22. 22.

    On the exceptions and the functional approach see Steyger 2002, p. 276; Baquero-Cruz 2005, p. 179 seq; Sauter 2008, p. 182 seq; Swennen 2008/2009, p. 263 seq, 278 seq; Aicher et al. 2009, paras 52, 61, 70 seq; Sauter and Schepel 2009, p. 79 seq, 83 seq, 95; Prosser 2010, p. 319 seq; Chalmers et al. 2014, Chapter 25 (online resource), p. 14 seq; Jones and Sufrin 2014, p. 129 seq; Sauter 2015, pp. 18, 111, 118 seq; Szyszczak 2015, p. 681 seq.

  23. 23.

    C-22/98 Becu (Judgment of 16 September 1999, EU:C:1999:419) para 26. That then also means that trade unions are not associations of undertakings and, more generally, competition law does not apply to collective agreements (C-67/96 Albany para 59).

  24. 24.

    Lucey 2015.

  25. 25.

    13/77 INNO v ATAB (Judgment of 16 November 1977, EU:C:1977:185) para 30 seq.

  26. 26.

    Chalmers et al. 2014, Chapter 25 (online resource), p. 6 suggest that this might change in the future after the Court considered ‘ancillary constraints’ in C-309/99 Wouters (Judgment of 19 February 2002, EU:C:2002:98) as part of Article 101 TFEU . The Court also followed this line of reasoning in C-519/04 P Meca-Medina (Judgment of 18 July 2006, EU:C:2006:492). Both cases, however, concerned very specific circumstances and it has to be seen how far this line of reasoning can actually be utilised beyond such cases.

  27. 27.

    C-185/91 Reiff (Judgment of 17 November 1993, EU:C:1993:886) para 14 seq, case C-35/99 Arduino (Judgment of 19 February 2002, EU:C:2002:97) paras 34–37.

  28. 28.

    Chalmers et al. 2014, Chapter 25 (online resource), p. 5 seq; Sauter 2015, p. 127 seq.

  29. 29.

    C-2/91 Meng (Judgment of 17 November 1993, EU:C:1993:885) para 14 seq. As there was no actual collusion between undertakings in this case, the Court did not find an infringement of Article 4(3) TEU in conjunction with Article 101 TFEU.

  30. 30.

    On the definition of ‘public undertakings and undertakings to which Member States grant special or exclusive rights’ see Whish 2015, p. 235 seq.

  31. 31.

    155/73 Sacchi (Judgment of 30 April 1974, EU:C:1974:40) para 14.

  32. 32.

    On the definition of ‘measures’ see Whish 2015, p. 238, who concludes that a wide approach, similar to the approach concerning the definition of the term in respect to the free movement provisions , is envisaged here.

  33. 33.

    18/88 RTT (Judgment of 13 December 1991, EU:C:1991:474) para 23 seq. In T-169/08 Greek Lignite (Judgment of 20 September 2012, EU:T:2012:448) the General Court initially annulled a Commission decision where there was no infringement by an undertaking. However, this was quashed on appeal (C-553/12 P Greek Lignite (Judgment of 17 July 2014, EU:C:2014:2083)). Thus it is still possible to act against anticompetitive market regulation by Member States even without an actual infringement by an undertaking. On the case see also Szyszczak 2015, p. 684 seq who argues that the language the Court uses in the appeal case may even present a modernisation and expansion in that it ‘provides greater scope to examine the potential effects on competition by the creation and exercise of monopoly/quasi monopoly rights by the State’ (quote on p. 686).

  34. 34.

    See, for example, C-49/07 MOTOE (Judgment of 1 July 2008, EU:C:2008:376) para 50.

  35. 35.

    On Article 106(1) TFEU see Sauter and Schepel 2009, p. 93 seq, 96; Neergaard 2011, p. 182; Chalmers et al. 2014, Chapter 25 (online resource), p. 8 seq; Whish 2015, p. 234 seq.

  36. 36.

    Buendia Sierra 2016.

  37. 37.

    Chalmers et al. 2014, Chapter 25 (online resource), p. 2, 14.

  38. 38.

    See Neergaard 2011, p. 183 seq, Chalmers et al. 2014, Chapter 25 (online resource), p. 14 seq with further references, Whish 2015, p. 241 seq.

  39. 39.

    Steyger 2002, p. 276; Mestmäcker and Schweitzer 2004, §34 para 17; Sauter 2008, pp. 167, 183; Aicher et al. 2009, para 69; Neergaard 2011, p. 183 seq; Whish 2015, pp. 234, 247 seq.

  40. 40.

    The term ‘services’ under Article 106(2) TFEU is to be understood in a wider sense than ‘services’ under Article 57 TFEU to also include the production and distribution of goods. See Mestmäcker and Schweitzer 2004, §34, para 17.

  41. 41.

    See Communication ‘Services of general interest in Europe’ OJ [2001] C 17/04 Annex II.

  42. 42.

    Hatzopoulos 2009, p. 226. Regarding the correspondence of the term with the French ‘service public’ see Mestmäcker and Schweitzer 2004, §34, para 17. See Sauter and Schepel 2009, 89 seq, 95 regarding convergence with internal market reasoning.

  43. 43.

    See SGEIs in Europe Communication (n 41) Annex II.

  44. 44.

    Sauter 2015, p. 9.

  45. 45.

    For more on terminology see Mestmäcker and Schweitzer 2004, § 34, para 17 seq, Sauter 2008, p. 181; Hatzopoulos 2009, p. 225 seq; Neergaard 2011, p. 175 seq; Jones and Sufrin 2014, p. 632 seq; Sauter 2015, p. 10 seq.

  46. 46.

    See Neergaard 2013, p. 206 who spotted the first use of the term SSGIs in the Commission’s Report to the Laeken European Council COM(2001) 598 final, where the term is, however, only mentioned and not further elaborated upon.

  47. 47.

    Commission Communication ‘Implementing the Community Lisbon Programme: Social Services of General Interest in the European Union’ COM (2006) 177 final p. 4.

  48. 48.

    See Neergaard 2013, p. 210 seq. A useful diagram is also provided in Neergaard 2009a, p. 20. Explanations of SGIs, SGEIs, non-economic services, market service and the disputed categories of SSGIs, HSGIs and ETSGIs are provided on the following pages.

  49. 49.

    See further Neergaard 2009a, p. 19 seq; Neergaard 2013, p. 210 seq, 239 seq; Sauter 2015 p. 17 seq, 28.

  50. 50.

    Neergaard 2011, p. 176.

  51. 51.

    Neergaard 2009a, p. 17; Neergaard 2009b; p. 195, Neergaard 2011, p. 175. Similarly Sauter 2008, p. 167.

  52. 52.

    See Sauter 2008, p. 168 seq, 171 seq; Neergaard 2009b, p. 196 seq; Neergaard 2011, p. 177 seq; Sauter 2015, p. 21.

  53. 53.

    This competence is, however, limited to passing regulations, in contrast to the proposed provision in the Constitution, which, in Article III-122, referred to ‘European laws’ in general.

  54. 54.

    See Sauter 2008, p. 169 seq, 172; Neergaard 2011, p. 179.

  55. 55.

    See further Sauter 2015 pp. 23, 27, 222, 241.

  56. 56.

    See Sauter 2008, p. 171 seq; Neergaard 2009b, p. 196 seq; Neergaard 2011, p. 178 seq; Chalmers et al. 2014, Chapter 25 (online resource), p. 26 seq.

  57. 57.

    For more see Chalmers et al. 2014, Chapter 25 (online resource), p. 28 seq, 36 seq.

  58. 58.

    10/71 Muller (Judgment of 14 July 1971, EU:C:1971:85) para 13 seq, C-67/96 Albany para 103 seq and T-17/02 Olsen (Judgment of 15 June 2005, EU:T:2005:218) para 216.

  59. 59.

    T-309/12 Zweckverband Tierkörperbeseitigung (Judgment of 16 July 2014 EU:T:2014:676) para 106, T-295/12 Germany v Commission (Judgment of 16 July 2014, EU:T:2014:675) para 46.

  60. 60.

    T-289/03 BUPA (Judgment of 12 February 2008, EU:T:2008:29) para 172 seq.

  61. 61.

    Ibid para 186 seq.

  62. 62.

    SGEIs in Europe Communication (n 41) Annex II.

  63. 63.

    On the problematic classification of health care see van de Gronden 2004; Prosser 2010.

  64. 64.

    See, for example, case T-289/03 BUPA.

  65. 65.

    10/71 Muller (n 58) para 10 seq.

  66. 66.

    Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest OJ [2012] L 7/3 Article 4. In recital 4 of the preamble the Commission refers to the Altmark judgment (C-280/00, Judgment of 24 July 2003, EU:C:2003:415) in which the Court required, inter alia, that a public service obligation must be clearly defined for the compensation of such a service not to constitute state aid . The General Court in T-461/13 Spain v Commission (Judgment of 26 November 2015, EU:T:2015:891) para 63 seq equally made clear that there needs to be a clearly defined public service obligations that has been entrusted to certain undertakings. The case is currently being appealed (C-81/16 P Spain v Commission). See further on relevant case law Szyszczak 2016 (forthcoming).

  67. 67.

    See, for example, 18/88 RTT para 22.

  68. 68.

    On the first criterion see further Prosser 2005, p. 550; Sauter 2008 (in particular p. 178 seq on the universal service obligation as part of SGEIs), Neergaard 2009b, p. 211 seq, 219 seq; Neergaard 2011, pp. 185, 191 seq; Chalmers et al. 2014, Chapter 25 (online resource), p. 18 seq; Sauter 2015, p. 10, 13 seq, 27. For a different take on the first criterion see Mestmäcker and Schweitzer 2004, § 34, para 17 seq who argue in favour of a strict European definition and a tight margin of discretion for the Member States.

  69. 69.

    See, for example, 155/77 Sacchi para 15 and C-41/90 Höfner para 24 both referring to the ‘incompatibility’ of the undertaking to comply with competition rules and to fulfil its tasks.

  70. 70.

    See, for example, C-475/99 Ambulanz Glöckner para 57.

  71. 71.

    See, for example, C-203/96 Dusseldorp (Judgment of 25 June 1998, EU:C:1998:316) para 67 where the Court held that the national government had to show that the SGEI mission, if given at all, ‘cannot be achieved equally well by other means’ for the measure to be proportional.

  72. 72.

    See, for example, C-475/99 Ambulanz Glöckner para 62 seq. Whilst the Court does not explicitly conduct a proportionality test, and, even if it does, it is not a very strict one focussing on necessity, it seems to come to the conclusion that the extension of a right into a connected market would be disproportionate if demand in the connecting market could not be satisfied.

  73. 73.

    Neergaard 2011, p. 190 seq.

  74. 74.

    Sauter 2008, p. 186; Sauter 2015, p. 227.

  75. 75.

    See, for a more detailed analysis of the second criterion, Mestmäcker and Schweitzer 2004, § 34, para 19, Prosser 2005, p. 550; Sauter 2008; Neergaard 2009b, p. 211 seq; Prosser 2010, p. 325; Neergaard 2011, p. 185 seq, 190 seq; Chalmers et al. 2014, Chapter 25 (online resource), pp. 18, 21 seq; Sauter 2015, pp. 27, 227.

  76. 76.

    See C-157/94 Commission v Netherlands (Judgment of 23 October 1997,EU:C:1997:499) para 67. In this case a Dutch company’s exclusive right of electricity imports had been challenged by the Commission. A potential effect on trade between Member States was given, as it would have been theoretically possible that the exclusive right led to reduced imports compared to a situation where every potential customer could have imported electricity directly. As the Commission had not shown, however, that ‘the development of intra-Community trade in electricity had been and continued to be affected to an extent contrary to the interests of the Community’ the Court dismissed the case.

  77. 77.

    For more on the final criterion see Neergaard 2009b, p. 211 seq; Neergaard 2011, p. 185; Chalmers et al. 2014, Chapter 25 (online resource), p. 18 seq.

  78. 78.

    See Neergaard 2009b, p. 223 seq; Neergaard 2011, pp. 184, 194 seq; Sauter 2015, p. 155.

  79. 79.

    Szyszczak 2016 (forthcoming).

  80. 80.

    As regards education see Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest OJ [2012] C 8/02 para 26 seq and Commission Decision 2006/225/EC on the aid scheme implemented by Italy for the reform of the training institutions OJ [2006] L 81/13 para 41 seq. In both these, the Commission explicitly imported the reasoning from internal market law in the field of education into competition and state aid law. In internal market law the Court had established in C-263/86 Humbel (Judgment of 27 September 1988, EU:C:1988:451) and C-109/92 Wirth (Judgment of 7 December 1993, EU:C:1993:916) that public education is generally not a service in the meaning of the Treaty (see further Chap. 2, Sect. 2.3.2 above). Similarly, in two cases of notified state aid concerning the Czech Republic (State aid NN54/2006-Czech Republic Přerov Logistics College) and Hungary (State aid NN343/2008-Hungary College of Nyíregyháza Partium Knowledge Centre) the Commission found the activities of colleges to be of a non-economic nature. As regards research see the Communication on state aid and SGEIs mentioned earlier in this note in para 29 as well as Commission Communication ‘Framework for State aid for research and development and innovation’ OJ [2014] C 198/01 (hereinafter Research Framework ) para 19 where the principle that research in the public interest in public HEIs is usually not an economic activity is established.

  81. 81.

    Research Framework para 19(a).

  82. 82.

    For more on recent developments in the HEIs sector see Chap. 1 (Sect. 1.3.3). On the classification of HEIs, see also Steyger 2002, p. 275 seq, 277 seq; Swennen 2008/2009, pp. 265, 268, 279; Gideon 2012, p. 173 seq.

  83. 83.

    In the field of the free movement provisions , the emphasis is more on the aspect of remuneration while in competition law the existence of a market and the potential profit-making ability are the key factors (see similar Odudu 2011, p. 235). However, the changing definition in the field of the free movement provisions (Chap. 2, Sect. 2.3.2 above) and the fact that remuneration was found there can be an indicator that a market is developing, that there is the potential to make a profit and that the service is thus of an economic nature. For example, in C-153/02 Neri (Judgment of 13 November 2003, EU:C:2003:614) the Court in para 39 explicitly stated that the ‘organisation for remuneration of university courses is an economic activity’.

  84. 84.

    See also Steyger 2002, p. 277 seq; Swennen 2008/2009, p. 265 seq, 268 seq, 275, 279 seq; Gideon 2012, p. 173 seq, Gideon 2015a, p. 1053 seq; Gideon 2015b 29, p. 59 seq, Gideon and Sanchez-Graells 2016, p. 30 seq. For an analysis of the question as to whether an entity is an undertaking in the field of health care (as a similar field of public service provisions), see Prosser 2010; p. 335, Odudu 2011.

  85. 85.

    See Decision 2006/225/EC para 50.

  86. 86.

    Communication on state aid and SGEIs (n 80) para 28.

  87. 87.

    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 OJ [2016] C 262/1.

  88. 88.

    Ibid para 30.

  89. 89.

    Browne et al. 2010.

  90. 90.

    These policy changes are supposed to be taken even further into the direction of a market place with the new Higher Education and Research Bill currently debated in the UK parliament as outlined in the UK government’s Green and White Papers (see BIS 2015, 2016).

  91. 91.

    See also Gideon and Sanchez-Graells 2016, p. 30 seq.

  92. 92.

    Suarez 2014, p. 8 of the conference proceedings.

  93. 93.

    See also Swennen 2008/2009, pp. 266, 268, 275 seq with examples of national cases, 279 seq. Steyger 2002, p. 278 seq also discusses in how far HEIs might be undertakings, but differs on the point that the concept of undertaking is relative. On p. 278 she states: ‘Under community law, the entity as a whole will be seen as such undertaking. Contrary to national law, there is no separation of the commercial activity from the government activity’.

  94. 94.

    Community framework for state aid for research and development and innovation OJ [2006] C 323/01 (previous Research Framework).

  95. 95.

    Communication on state aid and SGEIs (n 80) para 30.

  96. 96.

    European Commission 2011, p. 8.

  97. 97.

    European Commission 2012 , p. 7 seq.

  98. 98.

    Research Framework para 19(a).

  99. 99.

    A research organization under the Research Framework is ‘an entity (such as universities, […]), irrespective of its legal status (organised under public or private law) or way of financing, whose primary goal is to independently conduct […] research […] or to widely disseminate the results of such activities by way of teaching, publication or knowledge transfer’ which must not give ‘undertakings that can exert a decisive influence […] [on the research organisation] preferential access to the results generated’ (Research Framework para 15(ee)).

  100. 100.

    Research Framework para 19(b).

  101. 101.

    European Commission 2012, p. 8.

  102. 102.

    However, one party can bear the financial risk by itself, an addition which had not been contained in the first draft of the new Research Framework (Paper of the services of DG Competition containing a draft Framework for state aid for research and development and innovation of 19 December 2013).

  103. 103.

    This distinction has been made even clearer since the draft Research Framework (n 102) where it had just mentioned subcontracting not being collaboration.

  104. 104.

    European Commission 2012, p. 7 seq.

  105. 105.

    Section 3.1.1 of the previous version of the Research Framework did also not mention consultancy as a technology transfer activity.

  106. 106.

    C-380/98 University of Cambridge (Judgment of 3 October 2000, EU:C:2000:529) paras 24–26.

  107. 107.

    See Chap. 2, Sects. 2.2.1.3 and 2.2.2 above.

  108. 108.

    Licensing and spin-offs creation were the examples named for potentially non-economic knowledge transfer in Section 3.1.1.1 of the previous Research Framework.

  109. 109.

    European Commission 2012, p. 8.

  110. 110.

    Interestingly, in the first draft of the new Research Framework, the threshold was only 15 %. See draft Framework (n 102) para 20.

  111. 111.

    European Commission 2014, p. 3.

  112. 112.

    European Commission 2012, p. 2, 10 seq.

  113. 113.

    The differentiation between economic and non-economic research infrastructure as such can now also be found in the new Notice on the Notion of State Aid (n 87) in para 218.

  114. 114.

    Notice on the Notion of State Aid (n 87) para 207.

  115. 115.

    Similarly, in T-347/09 Germany v Commission (Judgment of 12 September 2013, EU:T:2013:418) the General Court states in para 34 that the link between activities is to be examined in each individual case to establish if they can be regarded as activities ancillary to the non-economic activities or have to be considered economic in nature (‘Daher ist zu prüfen, ob die […] Tätigkeiten mit den Hauptaufgaben der Naturschutzorganisationen, die ausschließlich sozialer Natur sind, zusammenhängen oder ob sie diesen Rahmen sprengen und Tätigkeiten wirtschaftlicher Natur darstellen. Entgegen dem Vorbringen der Bundesrepublik Deutschland ist es in jedem Einzelfall erforderlich’).

  116. 116.

    Research Framework paras 21, 25, 27 (and 15).

  117. 117.

    Ibid para 21.

  118. 118.

    On commodification in HEIs in general see Chap. 1 (Sect. 1.3.3) and on further developments in the Member States under scrutiny see Chap. 4. See also Swennen 2008/2009, pp. 271, 275 with further references, Gideon 2012, p. 173; Gideon 2015a, p. 1046 seq; Gideon 2015b.

  119. 119.

    On the concept of a single economic unit under EU competition law see further Jones and Sufrin 2014, p. 137 seq.

  120. 120.

    See Lucey 2015 on the possibility of employees being regarded as undertakings.

  121. 121.

    Also on SGEIs and HEIs Steyger 2002, p. 278 seq; Swennen 2008/2009, p. 266; Gideon 2012, pp. 175, 183 seq; Gideon 2015b, 62.

  122. 122.

    Sauter 2015, p. 122. See also ibid pp. 118, 227.

  123. 123.

    Monti 2007, p. 53 seq; Greaves and Scicluna 2010, p. 15; Chalmers et al. 2014, p. 944 seq; Jones and Sufrin 2014, p. 21 seq.

  124. 124.

    Odudu 2010; Chirita 2014; Sauter 2015, p. 113.

  125. 125.

    See also Amato and Farbmann 2010, p. 8 seq; Greaves and Scicluna 2010, p. 16.

  126. 126.

    Commission Notice ‘on the definition of the relevant market for the purposes of Community Competition law’ OJ [1997] C 372/5 para 9.

  127. 127.

    Ibid para 7 seq.

  128. 128.

    Ibid para 13 seq. If the concentration is on the side of the buyer the same test is used to find out alternative supply routes (para 17).

  129. 129.

    Ibid para 20 seq.

  130. 130.

    Ibid para 24 seq.

  131. 131.

    Ibid para 15 seq.

  132. 132.

    On market definition see also Amato and Farbmann 2010, p. 9 seq.

  133. 133.

    In the German federalist system this is a matter of the federal German states and thus provisions concerning this will be found in state laws. See, for example, § 65 Bremisches Hochschulgesetz (Bremen HEIs Act).

  134. 134.

    See Chap. 4 (Sect. 4.2) below.

  135. 135.

    The market is to be opened further to alternative providers in the future (see BIS 2016, p. 21 seq).

  136. 136.

    See also on the product market in respect to HEIs Amato and Farbmann 2010, p. 9 seq; Gideon 2012, p. 176 seq.

  137. 137.

    See Chap. 2 (Sect. 2.3.1.2) above.

  138. 138.

    See also Amato and Farbmann 2010, p. 9 seq; Greaves and Scicluna 2010, p. 20 seq.

  139. 139.

    In some Member States, such as the Netherlands , PhD researchers are traditionally regarded and treated as staff and earn a salary (though the Netherlands also offer other ‘pathways’ by now). See VSNU (vereniging van universiteiten—association of universities in the Netherlands), (2016) Education at Dutch universities. http://www.vsnu.nl/nl_NL/education-at-dutch-universities-en.html. Accessed 11 March 2016. In other Member States, such as England, they are regarded as more akin to students.

  140. 140.

    See also Amato and Farbmann 2010, p. 10.

  141. 141.

    See above (Sect. 3.2.1 and 3.2.2) on the notion of ‘undertaking ’ and on the fact that in conjunction with other Treaty provisions, Article 101 TFEU can also apply to state action.

  142. 142.

    Tacit collusion takes place if there is some indication that there is an understanding between the undertakings involved concerning their market conduct without them having formed an agreement. Whilst parallel behaviour is an indicator for a concerted practise it does not in itself establish it (48/69 Imperial Chemical Industries (Judgment of 14 July 1972, EU:C:1972:70) para 8). See further Bishop and Walker 2010, p. 164 seq; Horspool and Humphreys 2014, p. 398 seq.

  143. 143.

    As the provision states, the collusion must have as its object or effect the negative impact on competition. It is not necessary that both can be established. This was reinforced by the Court in C-501, 513, 515 and 519/06 P GlaxoSmithKline (Judgment of 6 October 2009, EU:C:2009:610) para 55.

  144. 144.

    See further Lübbig 2008, para 20 seq.

  145. 145.

    T-112/99 Métropole (Judgment of 18 September 2001, EU:T:2001:215) para 72 seq. In this respect it is also worth mentioning that certain potentially anti-competitive clauses which are essential for the main agreement (ancillary restraints), are to be considered together with the latter under Article 101(1) and, if necessary, (3) TFEU rather than individually (ibid para 104 seq, in particular 104, 115 seq).

  146. 146.

    8/72 Vereeniging van Cementhandelaren (Judgment of 17 October 1972, EU:C:1972:84) para 29.

  147. 147.

    56/65 Maschinenbau Ulm (Judgment of 30 June 1966, EU:C:1966:38) p. 249.

  148. 148.

    On the criterion of effect on intra-Union trade see Commission Notice ‘Guidelines on the effect on trade concept contained in Articles 81 and 82 of the Treaty’ OJ [2004] C 101/81. In particular the effect on trade must be appreciable (para 44 seq of the Notice). This is, however, not to be confused with the concept of appreciability regarding the impact on competition mentioned below (n 149 seq). See further on the effect of trade concept Chalmers et al. 2014, p. 1001; Horspool and Humphreys 2014, p. 411.

  149. 149.

    First established by the Court in 5/69 Völk (Judgment of 9 July 1969, EU:C:1969:35) para 7.

  150. 150.

    C-226/11 Expedia (Judgment of 13 December 2012, EU:C:2012:795) para 37.

  151. 151.

    Commission Notice on agreements of minor importance which do not appreciably restrict competition under Article 101(1) of the Treaty on the Functioning of the European Union (De Minimis Notice) OJ [2014] C 291/1 Section II 8 seq.

  152. 152.

    Horizontal collusion is collusion between competitors, while vertical collusion is collusion between undertakings operating on different levels of production. In the latter, the concern is rather the portioning of the internal market than consumer welfare which is why the threshold regarding such collusion is higher. See Horspool and Humphreys 2014, p. 404 seq.

  153. 153.

    See the De Minimis Notice for further details as regards markets share thresholds in specific circumstances such as cumulative foreclosure effects.

  154. 154.

    On Article 101(1) TFEU see further Bishop and Walker 2010, pp. 158, 160 seq, 163 seq; Horspool and Humphreys 2014, p. 395 seq. With a focus on HEIs see Amato and Farbmann 2010, p. 8; Greaves and Scicluna 2010, pp. 15, 20; Gideon 2012, p. 175.

  155. 155.

    This applies only to the anti-competitive parts of the collusion, other parts might retain validity. See Horspool and Humphreys 2014, p. 395.

  156. 156.

    As regards public undertakings or undertakings with special or exclusive rights there is, of course, also the exemption provided in Article 106(2) TFEU as discussed above (Sect. 3.2.3).

  157. 157.

    Regulation 1/2003/EC on the implementation of the rules on competition laid down in Articles 81 and 82 of the Treaty OJ [2003] L 1/1 Article 1(2).

  158. 158.

    See, for example, Commission White Paper on the modernisation of the rules implementing Articles 85 and 86 of the EC Treaty Programme No 99/027 OJ [1999] C 132/01 para 57 describing the purpose of Article 101(3) TFEU (then Article 85(3) EC) as ‘to provide a legal framework for the economic assessment of restrictive practices and not to allow application of the competition rules to be set aside because of political considerations’. Also, see Commission Communication ‘Guidelines on the application of Article 81(3) of the Treaty’ OJ [2004] C 101/08 para 42 stating that ‘the four conditions of Article 81(3) [now Article 101(3) TFEU] are also exhaustive. When they are met, the exception is applicable and may not be made dependent upon any other condition. Goals pursued by other Treaty provisions can be taken into account to the extent that they can be subsumed under the four conditions of Article 81(3) [now Article 101(3) TFEU]’. See also Monti 2007, Chap. 4; in particular p. 89 seq, 102 seq and 122 seq and Jones and Sufrin 2014, p. 254 seq. Especially on HEIs in this respect see Greaves and Scicluna 2010, p. 20.

  159. 159.

    Townley has argued that, despite the Commission’s emphasis on economic efficiency in these documents, a different reading may be possible in the light of former Commission decisions and judgments by the Court and thus broader considerations could potentially be taken into account under Article 101(3) TFEU (Townley 2009).

  160. 160.

    On Article 101(2) and (3) TFEU see Bishop and Walker 2010, p. 158 seq; Horspool and Humphreys 2014, p. 412 seq, 414 seq; Sauter 2015, p. 115 seq and, specifically on HEIs, Greaves and Scicluna 2010, pp. 16, 19 seq and Gideon 2012, p. 179.

  161. 161.

    For a critical analysis of BERs in the system of competition law after Regulation 1/2003 see Marcos and Sanchez-Graells 2010.

  162. 162.

    Commission Regulation 1218/2010/EU on the application of Article 101(3) of the Treaty on the Functioning of the European Union to certain categories of specialisation agreements OJ [2010] L 335/43. A specialisation agreement requires that one or more competing undertakings specialise in one area and therefore receive goods or services from competing undertakings in this area which they would have normally provided themselves (Article 2(1)). The BER also covers certain aspects of IPR related to specialisation (Article 2(2)).

  163. 163.

    Commission Regulation 1217/2010/EU on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of research and development agreements OJ [2010] L 335/36.

  164. 164.

    Commission Regulation 316/2014/EUC on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of technology transfer agreements OJ [2014] L 93/17.

  165. 165.

    Commission Regulation 330/2010/EU on the application of Article 101(3) of the Treaty on the Functioning of the European Union to categories of vertical agreements and concerted practices OJ [2010] L 102/1.

  166. 166.

    On BERs regarding HEIs see also Amato and Farbmann 2010, p. 8 seq; Greaves and Scicluna 2010, pp. 16, 19 seq; Gideon 2012, p. 180. On BERs generally see Bishop and Walker 2010, p. 158 seq; Horspool and Humphreys 2014, p. 414 seq.

  167. 167.

    Any additional potentially economic activities conducted by HEIs (e.g. housing for students, university branded merchandise etc.) shall be left aside in the following, as they are not the main purpose of an HEI as explored in Chap. 1 (Sect. 1.3.1) above.

  168. 168.

    OFT Decision CA98/05/2006 from 20 November 2006 available on http://webarchive.nationalarchives.gov.uk/20140402142426/ http://www.oft.gov.uk/OFTwork/competition-act-and-cartels/ca98/decisions/schools. The OFT applied the prohibition in s 2(1) Competition Act 1998, the equivalent to Article 101(1) TFEU. For more on the case see Swennen 2008/2009, p. 277; Amato and Farbmann 2010, p. 10 seq; Greaves and Scicluna 2010, pp. 13, 21 seq; Gideon 2012, p. 175.

  169. 169.

    Certain exception where applicable, for example, because of Crown immunity. The schools had also agreed to pay into an ‘educational trust fund for the benefit of pupils who attended the Participant schools during the academic years’ which was taken into consideration by the OFT when calculating the fine (ibid). Interestingly and somewhat strangely, the latter was (unsuccessfully) attempted to be used as precedent in T-486/11 Orange Polska (Judgment of 17 December 2015, EU:T:2015:1002) (an abuse of a dominance case in front of the General Court in which a former public monopolist in the telecommunications sector abused its dominance in providing the network in order to enhance its position in the neighbouring broadband market) to offset part of the fine by subsequent investments into the network.

  170. 170.

    OFT 2014, para 6.5 seq.

  171. 171.

    Ibid.

  172. 172.

    de Pous I (2011) Amsterdamse universiteiten gedaagd om prijsafspraken (English translation: Amsterdam universities sued for price-fixing). de Volkskrant, 1 September 2011 http://www.volkskrant.nl/vk/nl/4884/Bezuinigingen-in-het-hoger-onderwijs/article/detail/2880822/2011/09/01/Amsterdamse-universiteiten-gedaagd-om-prijsafspraken.dhtml. Accessed 14 October 2011, Myklebust JP and O’Malley B (2011) NETHERLANDS: Dawn raids over ‘illegal’ tuition fees. University World News, 7 September 2011 http://www.universityworldnews.com/article.php?story=20110907191951868. Accessed 23 September 2011, Dijkstra PT (2011) Amsterdam Universities fix prices: how to prevent this from happening? knowledge debate, 5 September 2011 http://www.rug.nl/kennisdebat/onderwerpen/actueel/universitiesFixPrices. Accessed 14 October 2011.

  173. 173.

    NMa (2011) Bedrifsbezoeken NMa bij Amsterdamse universiteiten (English translation: Company inspection by NMa in Amsterdam universities). http://www.nma.nl/documenten_en_publicaties/archiefpagina_nieuwsberichten/webberichten/2011/20_11_bedrijfsbezoeken_nma_bij_amsterdamse_universiteiten.aspx. Accessed 12 October 2011. For more on the case see Gideon 2012, p. 175.

  174. 174.

    NMa (2012) NMa accepteert maatregelen van UvA en VU (English translation: NMa accepts commitments by UvA and VU). https://www.acm.nl/nl/publicaties/publicatie/10780/NMa-accepteert-maatregelen-van-UvA-en-VU/. Accessed 16 October 2012.

  175. 175.

    BGH Judgement 23.10.1979 in (1980) 82 GRUR 249. For more on the case see Kroitzsch 1980, p. 251 seq; Swennen 2008/2009, p. 277; Gideon 2012, p. 178.

  176. 176.

    In C-413/13 FNV Kunsten Informatie en Media (Judgment of 4 December 2014, EU:C:2014:2411) the Court declared that self-employed musicians may under certain circumstances (i.e. work under direction, no sharing of commercial risks, economic unit with the employer’s undertaking) be regarded as ‘false-self-employed’. It was left open to the national court to determine that. In any case, however, the situation was different from that in the German Music School Case, as it did not concern music teachers, but replacement musicians for orchestras who conducted exactly the same tasks as employed replacements. Furthermore, the agreement had been made in the context of collective bargaining between a union representing employed and certain self-employed musicians and the employers. Thus it seems doubtful in how far this could be applicable in a scenario such as the one in the German Music School Case. Indeed, the Court stated that in general the self-employed musicians were to be regarded as undertakings (para 27).

  177. 177.

    Being a national competition authority examining the sector under national law, they did not challenge the national legislation, but evaluated it as an advisory body for policy changes (OFT 2014, para 7.3), as a variety of issues with competitive neutrality had been identified following the Call for Information. On these issues see OFT 2014, Chap. 7 and CMA 2015.

  178. 178.

    OFT 2014 para 7.17, CMA 2015 para 5.45 seq. It would appear that the envisaged changes in the English higher education sector still foresee the cap for the future. However, it is intended to be adjusted with inflation which only certain HEIs which perform well in the planned Teaching Quality Framework can charge. See BIS 2015, p. 57 seq, BIS 2016, p. 40 seq.

  179. 179.

    Complaint, United States v. Brown Univ., No. 91-CV-3274 (E.D. Pa., filed May 22, 1991). For more on the case see Salop and White 1991; Carlson and Shepherd 1992; Stachtiaris 1993/1994; Petronio 1994–1995.

  180. 180.

    See Salop and White 1991, p. 198 seq who, however, doubt that such arguments would stand up in Court under antitrust law (the article was written before the actual proceedings had been started), Carlson and Shepherd 1992 who, however, oppose the scheme, as they believe it was economically inefficient and Stachtiaris 1993/1994, p. 746 seq.

  181. 181.

    Stipulation, United States v. Brown Univ., No. 91-CV-3274 (E.D. Pa., filed May 22, 1991).

  182. 182.

    Decision and Order, United States v. Brown Univ., No. 91-CV-3274 (E.D. Pa., filed Sept. 2, 1992).

  183. 183.

    Opinion of the Court, United States v. Brown Univ., No. 92-1911 (3d Cir. Sept. 17, 1993).

  184. 184.

    Letter of 22 December 1993 by the US Department of Justice—Antitrust Division, available on http://www.appliedantitrust.com/06_reasonableness/brown/litan_thane_settlement12_22_1993.pdf.

  185. 185.

    Similar Stachtiaris 1993/1994, who argues that therefore HEIs should not fall under antitrust law in the first place.

  186. 186.

    See n 145 above.

  187. 187.

    For example, see 107/82 AEG (Judgment of 25 October 1983, EU:C:1983:293) para 35 seq. The case concerned a distribution network which is, as such, not incompatible with Article 101(1) TFEU, if any undertaking, which wishes to do so and which fulfils objective qualitative criteria, can enter the network. However, if undertakings which meet the qualitative criteria are prevented from entering, this does constitute an infringement. It is regarded as collusion, as the acceptance of the conditions by the participating undertakings is seen as approval. See also Horspool and Humphreys 2014, p. 398 seq.

  188. 188.

    See Grimston J and Winch J (2010) Maastricht University is fighting for a listing in order to attract British students. The Sunday Times, 24 October 2010 News: 4. There does not seem to be anything available on the case since initial press coverage.

  189. 189.

    This might probably have referred to the free movement of services , but the article is not very precise here and also talks about effects on competition. A challenge under the free movement provisions would imply that UCAS would be regarded as part of the Member State (the UK) which discriminates against foreign service providers. Higher education would thus have to be regarded as a service in the meaning of the free movement provisions (see Chap. 2, Sect. 2.3.2 above).

  190. 190.

    On the market foreclosure scenario see Gideon 2012, p. 179.

  191. 191.

    OFT 2014, para 1.10. See also ibid para 7.28 seq.

  192. 192.

    Ward L (2015) European universities to be part of Ucas admissions. The Guardian, 17 February 2015 https://www.theguardian.com/education/2015/feb/17/european-universities-to-be-part-of-ucas-admissions. Accessed 8 April 2016.

  193. 193.

    See the subsection ‘studying overseas’ in the section ‘alternatives to higher education’ on the UCAS website: https://www.ucas.com/ucas/undergraduate/getting-started/alternatives-higher-education/studying-overseas.

  194. 194.

    For an evaluation of accreditation agencies under US American antitrust law see Havighurst and Brody 1994. For an evaluation of legal education accreditation under the Sherman Act see First 1979; Lao 2001; Areen 2011.

  195. 195.

    See those discussed in First 1979, p. 1062, p. 1080, Havighurst and Brody 1994, pp. 201, 203 and Lao 2001, p. 1037.

  196. 196.

    Competitive Impact Statement, United States v American Bar Association, No. 95-1211(CR) (D. D. C. 1996). In this case the fixing of salaries and working conditions had also been challenged and was amongst the conduct the ABA had to agree to stop in the consent decree (Sect. I A). In Europe such problems seem less likely due to different labour law traditions and a cautious approach by the European judiciary in this respect (see Monti 2007, p. 96 seq). For more on United States v American Bar Association see Lao 2001, p. 1037 seq; Areen 2011, p. 1487 seq.

  197. 197.

    UCU (2012) UCU politics monthly—June 2012—Response to HE consultation. http://www.ucu.org.uk/index.cfm?articleid=6194#wmin. Accessed 29 June 2012.

  198. 198.

    Morgan J (2013) Ucas withholds 2013–14 application data. THE, 14 February 2013 http://www.timeshighereducation.co.uk/news/ucas-withholds-2013-14-application-data/2001543.article. Accessed 17 April 2013.

  199. 199.

    Ibid.

  200. 200.

    OFT 2014 para 1.10. See also ibid para 7.28 seq.

  201. 201.

    CMA 2015, para 6.9.

  202. 202.

    OFT 2014, para 7.26 seq, 7.36 seq.

  203. 203.

    CMA 2015, para 5.2 seq.

  204. 204.

    Some of the issues mentioned in this section have been addresses in the UK government’s recent Green and White Paper where plans are expressed to level the playing field. Yet, there still appear to be certain differences remaining. See further BIS 2015, 2016.

  205. 205.

    If the collaboration goes as far as creating a new organisation this might have to be considered as a merger , which is discussed below (Sect. 3.3.4).

  206. 206.

    See Chap. 1 (Sect. 1.3.1) above.

  207. 207.

    For more on student mobility see Lanzendorf 2006, p. 8 seq. According to the data given there, an average of only 3 % of students in the Eurodata countries study abroad. The Eurodata countries comprised the EU-27 as well as Turkey, Switzerland, Iceland, Liechtenstein and Norway (see Kelo et al. 2006, p. 5).

  208. 208.

    As will be seen in Chaps. 4 and 5 as regards research, this is in fact encouraged in some national policies.

  209. 209.

    See n 162 above.

  210. 210.

    In its assessment the OFT had not been able to generally find evidence regarding any anti-competitive collaborations in the English higher education market and considered that, if there were any anti-competitive collaborations, such agreements may often give rise to efficiency gains. It only saw information sharing for benchmarking as potentially problematic, but since this was a government policy it did not address this directly, but instead pledged to work with the government to attempt to create pro-competitive policies. See OFT 2014 para 6.15 seq.

  211. 211.

    On UCAS’ practise and its potential anti-competitiveness see Morgan (n 198).

  212. 212.

    OFT 2014, para 6.24 seq.

  213. 213.

    C-226/11 Expedia.

  214. 214.

    For more on research and development agreements see Lübbig and Schroeder 2008, para 120 seq.

  215. 215.

    See above n 163.

  216. 216.

    See also on anti-competitive behaviour as regards research Gideon 2015b, p. 60 seq.

  217. 217.

    See, for example, Chap. 2 (Sect. 2.3.1.2) above on the high number of students in the medical field who cannot gain a study place in their home state and therefore emigrate to other Member States, thus meaning demand can also not be met in those states anymore. On the re-occurring problem that demand for study places could not be met in England see, for example, Richardson H (2010) Thousands “to miss out on university degree”. BBC News, 1 February 2010 http://news.bbc.co.uk/1/hi/education/8487354.stm. Accessed 9 February 2010. However, caps on study places have since been lifted for some and completely abolished for certain other providers (see CMA 2015, para 3.3).

  218. 218.

    27/76 United Brands (Judgment of 14 February 1978, EU:C:1978:22) para 65.

  219. 219.

    62/86 Akzo (Judgment of 3 July 1991, EU:C:1991:286) para 60.

  220. 220.

    This question is closely linked to the aims of competition law, a detailed discussion of which would go beyond the scope of this book (on the aims of competition law see briefly above text accompanying n 123 and 124). For more on the concept of abuse see Monti 2007, p. 160 seq; Jung 2009, para 101 seq.

  221. 221.

    Except for SGEIs under Article 106(2) TFEU (see above Sect. 3.2.3).

  222. 222.

    C-95/04 P British Airways (Judgment of 15 March 2007, EU:C:2007:166) para 86. For more see Monti 2007, p. 162 seq, in particular p. 171 on the British Airways case and p. 203 seq on justifications. Rousseva and Marquis separate the unwritten justification into objective necessity justification and an efficiency defence. For the latter they advertise using the same four conditions as under Article 101(3) TFEU (see Sect. 3.3.2 above) and see evidence of the Court following such an approach in C-209/10 Post Danmark (Judgment of 27 March 2012, EU:C:2012:172). See further Rousseva and Marquis 2013, p. 48 seq.

  223. 223.

    See Commission Communication ‘Guidance on the Commission’s enforcement priorities in applying Article 82 of the EC Treaty to abusive exclusionary conduct by dominant undertakings’ OJ [2009] C 45/02 para 19.

  224. 224.

    See further on Article 102 TFEU Monti 2007, p. 160 seq; Jung 2009; Chalmers et al. 2014, p. 1031 seq. With a focus on HEIs see Amato and Farbmann 2010, p. 9; Greaves and Scicluna 2010, p. 15. With a focus on health care provision as a similar area see Wendt and Gideon 2011, p. 270 seq.

  225. 225.

    See Sect. 3.3.1 above.

  226. 226.

    For this argument in a reversed fashion, namely regarding the use of Article 102 TFEU to the advantage of third sector providers in their relationship towards established NHS (UK National Health Service) providers in health care ‘markets’ see Wendt and Gideon 2011, p. 271.

  227. 227.

    See Jung 2009, para 143 seq.

  228. 228.

    See Vasagar J (2009) Richest students to pay for extra places at Britain’s best universities. The Guardian, 9 May 2011 http://www.guardian.co.uk/education/2011/may/09/universities-extra-places-richest-students. Accessed 11 July 2011. The plans were not taken over into the 2011 government White Paper as such, but the White Paper still included the possibility of such extra places being funded by business and charities (see BIS 2011, p. 51 para 4.22 seq).

  229. 229.

    CMA 2015 para 3.3. Further lifting of student number controls is envisaged (BIS 2016, p. 27).

  230. 230.

    See Chap. 2 (Sect. 2.3.1) above.

  231. 231.

    Prendergast v Higher Education Authority & Ors [2008] IEHC 257.

  232. 232.

    See n 228 above.

  233. 233.

    Such a policy at the University of Oxford has been challenged by a student under the British Human Rights Act 1998. See BBC News (2013) Judgement reserved over Oxford University student discrimination row. BBC News, 15 February 2013 http://www.bbc.co.uk/news/uk-england-21465879. Accessed 17 February 2013.

  234. 234.

    See Jung 2009, para 186 seq.

  235. 235.

    On state aid see below Sect. 3.3.5.

  236. 236.

    Similar Greaves and Scicluna 2010, p. 18.

  237. 237.

    Besluit bk005-9801available on www.nmanet.nl/Images/0005BEMP_tcm16-97472.pdf. On the case see also Swennen 2008/2009, p. 275, Gideon 2012, p. 177.

  238. 238.

    The OFT in its report expressed some concern regarding UCAS data sets in the context of consumer choice and envisaged that the CMA conducts further work on the matter (OFT 2014 para 4.39 seq.).

  239. 239.

    OFT 2014 para 1.16, 6.8 seq.

  240. 240.

    CMA para 5.30 seq.

  241. 241.

    BIS 2016, p. 29 seq.

  242. 242.

    Council Regulation 139/2004/EC on the control of concentrations between undertakings (the EC Merger Regulation) OJ [2004] L 24/1. Before the first Merger Regulation (Council Regulation 4064/89/EEC on the control of concentrations between undertakings OJ [1989] L 395/01) was passed, the Court had assessed mergers through Article 102 TFEU (e.g. in 6/72 Continental Can (Judgment of 21 February 1973, EU:C:1973:22)). See further Marco Colino 2011, p. 357 seq. The Commission has started a review procedure of Regulation 139/2004/EC the latest document of which is the ‘White Paper “Towards more effective EU merger control”’ of 9 July 2014. Updates on the review process can be found on http://ec.europa.eu/competition/mergers/legislation/regulations.html.

  243. 243.

    These can be mergers of undertakings, the acquisition of undertakings and permanent joint ventures (Article 3 Merger Regulation). The term acquisition is broadly defined to include all means by which ‘decisive influence’ over an undertaking can be obtained. For more see Marco Colino 2011, p. 360 seq.

  244. 244.

    The Merger Regulation also applies to ‘persons’ holding interests in undertakings and thus executing the relevant control. ‘Persons’ in this respect can be individuals and even Member States if they are acting in a commercial manner. See Marco Colino 2011, p. 361.

  245. 245.

    According to Article 1(2) Merger Regulation, a merger has a Union dimension if it either has at least a combined world turnover of €5000 M and an individual Union turnover of at least €250 M in at least two involved undertakings unless the undertakings involved achieve two-thirds of their Union turnover in only one Member State or if it has at least a combined world turnover of €2500 M, a combined turnover of at least €100 M in at least three Member States, in at least three of these Member States the individual turnover of at least two undertakings is at least €25 M and the individual Union turnover of at least two undertakings is at least €100 M unless the undertakings involved achieve two-thirds of their Union turnover in only one Member State. The actual seat of an undertaking or the question of where their main activities take place is irrelevant. In addition, mergers of undertakings which do not have a Union dimension, but would need to be reviewed under the national competition law of at least three Member States, can be reviewed by the Commission if the undertakings in question apply for the Commission to do so and the Member States do not object (Article 4(5) Merger Regulation). Member States may also request the Commission to investigate a merger if they feel it has an effect on competition and trade between Member States (Article 22 Merger Regulation). On the other hand, mergers which do have a Union dimension can also be referred back to the Member States, if appropriate (Articles 9, 4(4) Merger Regulation) and Member States can take necessary actions if legitimate national interest are at stake (Article 21(4) Merger Regulation and Article 346 TFEU).

  246. 246.

    The Commission can also ask for modifications or impose conditions (Article 8(2) Merger Regulation).

  247. 247.

    This is not deemed to be the case if the undertakings concerned have a market share below 25 % (recital 32 Merger Regulation).

  248. 248.

    Article 2(3) Merger Regulation. A merger can lead to an undertaking achieving individual dominance, undertakings achieving collective dominance (this would be given if the actors would not be able to execute independent market strategies without the other market players copying such strategies) or a merger can cause an oligopoly in a market in which unilateral effects of the merger can restrict competition. See further Marco Colino 2011, p. 367 seq; Simon 2009, para 53 seq.

  249. 249.

    See Marco Colino 2011, p. 375 seq.

  250. 250.

    See recital 29 Merger Regulation. See also Guidelines on the assessment of horizontal mergers under the Council Regulation on the control of concentrations between undertakings OJ [2004] C 31/05 (Horizontal Merger Guidelines) para 76 seq, Guidelines on the assessment of non-horizontal mergers under the Council Regulation on the control of concentrations between undertakings OJ [2008] C 265/07 para 53 referring to the relevant section in the Horizontal Merger Guidelines. For more on the weighing of pro- and anti-competitive effects see Marco Colino 2011, p. 373 seq.

  251. 251.

    Horizontal Mergers Guidelines para 89 seq. See further on the failing firm defence European Commission 2009.

  252. 252.

    For more on merger control see Marco Colino 2008, p. 357 seq; Amato and Farbmann 2010, p. 9; Horspool and Humphreys 2014, p. 440.

  253. 253.

    The annual turnover of UK HEIs, for example, varies between less than £9 M and over £600 M (Kelly et al. 2009, p. 7). Taking this as indicative for HEIs’ annual turnovers, there would need to be at least five HEIs with a relatively high annual turnover each in a merger to meet the world turnover requirement.

  254. 254.

    Case ME/3080/07 available on https://www.gov.uk/cma-cases/city-college-manchester-manchester-college-of-arts-and-technology. On the case also see Swennen 2008/2009, p. 277.

  255. 255.

    Case ME/1613/04 available on https://assets.publishing.service.gov.uk/media/555de401ed915d7ae20000df/uompublish.pdf. On the case also see Swennen 2008/2009, p. 277; Gideon 2012, p. 181.

  256. 256.

    Fazackerley A (2013) Students not told which universities are struggling. The Guardian, 11 March 2013 https://www.theguardian.com/education/2013/mar/11/universities-falling-applications-ucas-protecting. Accessed 13 March 2014.

  257. 257.

    Commission Regulation 1407/2013/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid’ OJ [2013] L 352/1.

  258. 258.

    173/73 Italy v Commission (Judgment of 2 July 1974, EU:C:1974:71) para 13.

  259. 259.

    See, for example, C-189/91 Kirsammer-Hack (Judgment of 30 November 1993, EU:C:1993:907) para 17 seq. The Commission also emphasises this in Communication on state aid and SGEIs (n 80) para 31.

  260. 260.

    173/73 Italy v Commission para 15.

  261. 261.

    See, for example, T-55/99 CETM (Judgment of 29 September 2000, EU:T:2000:223) para 86.

  262. 262.

    Draft Commission Communication (2004) ‘A new framework for the assessment of State aid which has limited effects on intra-Community trade’ available on http://ec.europa.eu/competition/state_aid/reform/sit_let_en.pdf.

  263. 263.

    European Commission (2015) State Aid: Commission gives guidance on local public support measures that can be granted without prior Commission approval. http://europa.eu/rapid/press-release_IP-15-4889_en.htm. Accessed 14 July 2016.

  264. 264.

    Notice on the Notion of State Aid (n 87) para 190 seq, in particular para 196/197. In para 207 it is stated that amenities such as parking and canteens of research infrastructures are equally unlikely to have an effect on trade.

  265. 265.

    On the state aid criteria see also Biondi and Rubini 2005, p. 80 seq, 102 seq; Sauter 2015, p. 138; Szyszczak (2016 (forthcoming)).

  266. 266.

    The Court initially did not regard public service compensation as state aid (240/83 ADBHU (Judgment of 7 February 1985, EU:C:1985:59)). The General Court then took a different approach and did consider such compensation as state aid, but then exempting it under Article 106(2) TFEU (T-106/95 FFSA (Judgment of 27 February 1997, EU:T:1997:23) and T-46/97 SIC (Judgment of 10 May 2000, EU:T:2000:123)). The Court in C-53/00 Ferring (Judgment of 22 November 2001, EU:C:2001:627) upheld its original approach deeming public service compensation not as state aid unless exceeding the actual costs borne by the public service provision in which case the aid could then also not be exempted under Article 106(2) TFEU, as it would not meet the proportionality requirement. This judgement received fierce criticism because it was felt, inter alia, that Article 106(2) TFEU would lose its meaning, that the discretionary powers of the Commission to exempt aid would be severely limited and that there was no necessity for the undertakings to keep the costs low. See further Biondi and Rubini 2005, p. 93 seq; Prosser 2005, p. 554 seq.

  267. 267.

    C-280/00 Altmark.

  268. 268.

    On the latter see, for example, the recent cases T-309/12 Zweckverband Tierkörperbeseitigung and T-295/12 Germany v Commission on management of animal carcasses.

  269. 269.

    T-289/03 BUPA.

  270. 270.

    Similar Hatzopolous 2009, p. 236 seq; Sauter 2015, p. 142 seq; Gideon and Sanchez Graells 2016, p. 42 seq, 53. Szyszczak similarly highlights that healthcare is a unique area under EU economic law which poses interesting questions as regards economic activities and SGEIs were the European institutions are more willing to protect national schemes (Szyszczak 2015, p. 681 seq, 686 seq; Szyszczak 2016 (forthcoming)).

  271. 271.

    C-113/13 Spezzino (Judgment of 11 December 2014, EU:C:2014:2440).

  272. 272.

    For a more in-depth analysis of the Spezzino decision see Gideon and Sanchez Graells 2016, p. 41 seq.

  273. 273.

    See, for example, also Sauter 2015, p. 153 suggesting the General Court in T-79/10 Colt (Judgment of 16 September 2013, EU:T:2013:463) recently set a different emphasis when relying strongly on market failure.

  274. 274.

    On the ‘private investor principle’ and public service compensation generally see Biondi and Rubini 2005, p. 80 seq, 89 seq; Huber and Prikoszovits 2008, p. 171; Hatzopoulos 2009, p. 228 seq; Wendt and Gideon 2011, p. 272; Gideon 2012, p. 182 seq; Sauter 2015, p. 139 seq; Gideon and Sanchez Graells 2016, p. 39 seq.

  275. 275.

    Commission Directive 2006/111/EC on the transparency of financial relations between Member States and public undertakings as well as on financial transparency within certain undertakings OJ [2006] L 318/17.

  276. 276.

    Decision 2012/21/EU Article 2(1). Sauter describes this as ‘an unlimited block exemption […] for welfare services’ (Sauter 2015, p. 145 and, similar, 225). However, while the exemption for SGEIs below €15 M is indeed for all SGEIs, the exemption for SGEIs ‘meeting social needs’ is only for the services specified which notably does not include education. Further, it only applies to public service compensation if the undertaking has been entrusted with the public service for a maximum period of 10 years.

  277. 277.

    Commission Communication ‘European Union framework for State aid in the form of public service compensation’ OJ [2012] C 8/03.

  278. 278.

    Communication on state aid and SGEIs (n 80) para 3.

  279. 279.

    Regulation 360/2012/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest OJ [2012] L 114/12.

  280. 280.

    On Articles 107(2) and (3) see Biondi and Rubini 2005, p. 79 seq; Sauter 2015, p. 116.

  281. 281.

    See Gideon 2012, p. 183 seq.

  282. 282.

    Commission Regulation 651/2014/EU declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (General Block Exemption Regulation) OJ [2014] L 187/1.

  283. 283.

    The Commission uses the terms ‘fundamental research’, ‘industrial research’ and ‘experimental development’. The definitions provided (GBER Article 2(84) seq, Research Framework (para 15 (j), (m), (q)) for these terms lead to the conclusion that they are used in a similar way as the terms ‘basic research’, ‘applied research’ and ‘experimental development’ as defined by the Frascati Manual (see OECD 2002), though somewhat confusingly the new version of the Research Framework uses ‘applied research’ as an umbrella term for ‘industrial research’ and ‘experimental development’. As laid out in Chap. 1 (Sect. 1.3.3, n 35) the Frascati Manual definitions are used in this book.

  284. 284.

    Aid intensity describes the aid amount as percentage of the total eligible costs (Article 2(26) GBER).

  285. 285.

    GBER Articles 3, 4(1) (i), 25(5) seq. The amounts double if the project in question is a EUREKA project or a joint undertaking according to Article 185 and 187 TFEU (public-private partnerships of strategic importance) and the amount can be increased by 50 % if the aid is provided as a repayable advance. The aid intensity of both applied research and experimental development can be increased up to 80 % in total if bonuses for small and medium sized enterprises and effective collaboration or wide dissemination can be applied.

  286. 286.

    Article 4(1) (i), 25(5). The bonuses for SME (mentioned in n 285) are also available for feasibility studies.

  287. 287.

    Article 4(1) (j), 26(6). Research infrastructures can also receive regional investment aid under chapter III, Sect. 1 of the GBER which may increase the aid ceiling.

  288. 288.

    Article 4(1) (k), 27. The intensity can be increased in ‘assisted areas’ as regards investment aid. Operating aid for innovation clusters may not exceed 10 years.

  289. 289.

    Article 4(1) (l), 28. Only eligible costs (IPR, secondment of personnel, advisory and support services (e.g. consultancy, access to libraries)) can be covered.

  290. 290.

    Article 4(1) (m), 29. An SME has to be involved in process and organisational innovation measures which must incur at least 30 % of the eligible costs.

  291. 291.

    That means the aid must be able to be calculated in advance and there are (presumably exhaustive) examples of transparent aid. See also para 17 of the preamble. Member States must publish information about aid measures (Article 9(1)).

  292. 292.

    Article 6 and para 18 of the preamble. This means in particular that aid is not exempted if work has commenced before the application for aid was made to the Member State in question.

  293. 293.

    Article 25(2).

  294. 294.

    Preamble para 53.

  295. 295.

    Article 2(2) in conjunction with Annex I.

  296. 296.

    However, university spin-offs may benefit from these exemptions, even if the university holds more than 25 % of the spin-off’s shares (Article 3(2)), unless they are linked with the university in the sense of Article 3(3) (i.e. majority of voting rights, right to appoint management, etc.). Further, more generally, aid provided through the HEI to SME (e.g. consultancy aid (Article 18) or start-up aid (Article 22)) may be exempted if it is transparent aid.

  297. 297.

    Generally the aid intensities for R&D projects are 100 % for basic research, 50–70 % for applied research (depending on size of enterprise) and 25–45 % for experimental development with higher intensity (65–80 and 40–60 % respectively) for effective collaborations and/or wide dissemination. Aid intensities may be even higher (up to 90 % for both applied research and experimental development) where strict necessity can be shown (to paras 87–89). Other intensities apply to activities other than projects (e.g. feasibility studies or innovation aid for SME). Overall the aid intensities are now higher than in the previous Research Framework.

  298. 298.

    This includes, in particular, discriminatory schemes (para 104, 116 seq), schemes maintaining or creating market power (para 113 seq) or schemes which are not exemptible due to accumulation (para 106 seq).

  299. 299.

    Commission Communication Criteria for the analysis of the compatibility with the internal market of State aid to promote the execution of import projects of common European interest OJ [2014] C 188/44.

  300. 300.

    See Huber and Prikoszovits 2008, p. 171 seq; European Commission 2012, p. 11 seq; Gideon 2012, p. 183 seq; Gideon 2015b, p. 61 seq. In respect to hospitals see Hatzopoulos 2009, p. 244 seq; Wendt and Gideon 2011, p. 271 seq.

  301. 301.

    T-198/09 UOP (Order of 7 March 2013, EU:T:2013:105).

  302. 302.

    Ibid para 8.

  303. 303.

    Community framework for State aid for research and development OJ [1996] C 45/5.

  304. 304.

    See Chaps. 4 and 5 below.

  305. 305.

    European Commission 2012, pp. 2, 10 seq.

  306. 306.

    If the research organisation gets to keep IPR, these can be deducted from the price (para 26).

  307. 307.

    Compared to the draft the Framework (n 102) the final version now talks about ‘generally’ including a margin thus making it potentially wider.

  308. 308.

    See also Sect. 3.2.4.2 above in regards to the potentially broad scope of non-economic knowledge transfer.

  309. 309.

    For example, para 15(f) Research Framework, para 47 seq preamble of the GEBR, Article 2(83), Article 26 GBER on research infrastructures, Article 27 GBER on innovation clusters.

  310. 310.

    T-693/14 Hamr (Judgment of 12 May 2016, EU:T:2016:292).

  311. 311.

    Ibid para 80.

  312. 312.

    Ibid para 66.

  313. 313.

    See text surrounding n 267 above.

  314. 314.

    Gideon 2012, p. 181 seq; Gideon 2015a, p. 1056; Gideon 2015b, p. 61.

  315. 315.

    Provided they do fall under the state aid rules and are not meant to be entirely exempted as the Notice on the Notion of State (n 87) could potentially suggest as was discussed above (Sect. 3.2.4.1).

  316. 316.

    See further Gideon and Sanchez Graells 2016, p. 22 seq. See also Chap. 2, Sect. 2.3.4 above and Gideon and Sanchez Graells 2016 on public procurement and the in-house and public-public exemptions.

  317. 317.

    Hoogenboom 2015.

  318. 318.

    CMA 2015, para 3.3. See also Malik S et al. (2013) Poorest students face £350 m cut in grants. The Guardian, 22 November 2013 http://www.theguardian.com/education/2013/nov/22/poorest-students-face-350m-cuts. Accessed 29 November 2013.

  319. 319.

    UCU (2016) Fighting privatisation in tertiary education. https://www.ucu.org.uk/stopprivatisation. Accessed 11 March 2016.

  320. 320.

    Similarly, while assessing regulation in its advocacy role rather than looking at issues of state aid, the OFT and CMA in their reports pointed out that there should be a more level playing field as currently it seems nearly impossible for certain providers to achieve certain statuses (e.g. there are differences as regards student visa, degree awarding powers, etc.) or obtain certain funding (OFT 2014, para 7.20 seq, CMA 2015, para 5.2 seq). Again, the reforms outlined in the White Paper (BIS 2016) aim at introducing changes here which may resolve some of the issues by making the system more permeable, but, at same time, more commercial.

  321. 321.

    C-523/12 Dirextra (Judgment of 12 December 2013, EU:C:2013:831). This has been discussed in Chap. 2, Sect. 2.3.2 above.

  322. 322.

    Malik et al. (n 318), UCU (n 319).

  323. 323.

    See Chap. 2, Sect. 2.2.1.3 above.

  324. 324.

    See Research Framework para 3, European Commission 2012, pp. 2, 6 seq. Contrary to the seeming relaxation of the rules in the new Research Framework, Nicolaides in his evaluation of EU state aid rules for research and development, concludes that subsidies should be limited and provided competitively (Nicolaides 2013).

  325. 325.

    In his analysis of the difference in the English loan system, Hoogenboom conclusively submits that it seems unlikely that these exemption are applicable (Hoogenboom 2015).

  326. 326.

    European Commission 2012 para 7 seq.

  327. 327.

    Research Framework para 27, European Commission 2012, p. 7 seq.

  328. 328.

    European Commission 2011, p. 8 seq.

  329. 329.

    In the draft (n 102) para 29 it said that ‘particularly’ if the four conditions are fulfilled the price would be equivalent to market price, now the four options seem exhaustive.

  330. 330.

    European Commission 2012, p. 7 seq.

  331. 331.

    Case T-488/11 Sarc.

  332. 332.

    The previous Research Framework in its Section 3.1.1 also provided that licensing would be non-economic if handled by, with or on behalf of the research organisation and all income was reinvested.

  333. 333.

    Sanchez Graells argues that in ‘adopting such a strict approach and imposing such a high […] burden of proof of significant alteration of its competitive position, the GC only recognises the applicant’s standing to protect its procedural rights, which fundamentally limits the possibility for competitors to challenge State aid decisions’ (Sanchez Graells 2014).

  334. 334.

    This is, for example, increasingly popular in Germany . See Zander H (2009) Starthilfe. Der Tagesspiegel, 26 April 2009 http://www.tagesspiegel.de/studium-starthilfe/1797792.html. Accessed 28 February 2012, Studieren.net (2012) Abschlussarbeit Teil 4. http://www.studieren.net/studienphase/studienabschluss/abschlussarbeit-teil-4.html. Accessed 28 February 2012.

  335. 335.

    Directive 2014/104/EU on certain rules governing actions for damages under national law for infringements of the competition law provisions of the Member States and of the European Union OJ [2014] L 349/1. See also C-295-298/04 Manfredi (Judgment of 13 July 2006, EU:C:2006:461) and C-453/99 Courage (Judgment of 20 September 2001, EU:C:2001:465).

  336. 336.

    Similar Greaves and Scicluna 2010, pp. 21, 24.

  337. 337.

    See Sect. 3.2.3.3 above on the test.

  338. 338.

    Similar regarding health care markets see Wendt and Gideon 2011, p. 274.

  339. 339.

    Similar Greaves and Scicluna 2010, p. 24.

  340. 340.

    Sauter 2015, p. 126 seq, 224.

  341. 341.

    In essence the CMA suggests to establish a baseline quality which should be kept to the minimum to allow an equal playing field of all providers while other public policy goals should not be reflected in regulation of providers above baseline, but through other, competitively neutral measures. See CMA para 1.10 seq.

  342. 342.

    BIS 2015, 2016. The envisaged system is to create a single entry route where providers can more easily access the market and achieve certain statuses, while it is also foreseen that they can exit the market.

References

  • Aicher J et al (2009) EGV Art. 81 Verbot wettbewerbsbeschränkender Vereinbarungen und Verhaltensweisen (Nizza-Fassung) (English translation: Article 81 EC prohibition of anti-competitive agreements and practices (Nice Version)). In: Grabitz E et al (eds) Das Recht der Europäischen Union (English translation: Law of the European Union), 40th edn. Beck, Munich

    Google Scholar 

  • Amato F, Farbmann K (2010) Applying EU competition law in the education sector. IJELP 6:7–13

    Google Scholar 

  • Areen J (2011) Accreditation reconsidered. Iowa Law Rev 96:1471–1494

    Google Scholar 

  • Baquero Cruz J (2005) Beyond competition: services of general interest and European Community Law. In: De Burca G (ed) EU law and the welfare state. OUP, Oxford, pp 169–212

    Chapter  Google Scholar 

  • Biondi A, Rubini L (2005) Aims, effects and justifications: EC state aid law and its impact on national social policy. In: Dougan M, Spaventar E (eds) Social welfare and EU law. Hart, Oxford/Portland, pp 79–104

    Google Scholar 

  • BIS (2011) Higher education—students at the heart of the system. The Stationery Office, Norwich

    Google Scholar 

  • BIS (2015) Fulfilling our potential—teaching excellence, social mobility and student choice. Williams Lea Group on behalf of the Controller of Her Majesty’s Stationery Office, London

    Google Scholar 

  • BIS (2016) Success as a knowledge economy. Williams Lea Group, London

    Google Scholar 

  • Bishop S, Walker M (2010) The economics of EC competition law. Sweet & Maxwell, London

    Google Scholar 

  • Boeger N (2007) Solidarity and EC competition law. Eur Law Rev 32:319–340

    Google Scholar 

  • Browne J et al (2010) Securing a sustainable future for higher education. http://webarchive.nationalarchives.gov.uk/+/hereview.independent.gov.uk/hereview/report/

  • Buendia Sierra JL (2016) Enforcement of Article 106(1) TFEU by the European Commission and the EU Courts. In: Lowe P et al (eds) European competition law annual 2013. Hart, Oxford/Portland, pp 279–306

    Google Scholar 

  • Carlson DR, Shepherd GB (1992) Cartel on campus: the economics and law of academic institutions’ financial aid price fixing. Oregon Law Rev 71:563–629

    Google Scholar 

  • Chalmers D et al (2014) European Union law, 3rd edn. CUP, Cambridge

    Google Scholar 

  • Chirita AD (2014) A legal-historical review of the EU competition rules. Int Comp Law Q 63:281–316

    Article  Google Scholar 

  • CMA (2015) An effective regulatory framework for higher education: A policy paper. Crown Copyright, London

    Google Scholar 

  • European Commission (2009) Roundtable on failing firm defence—note by the delegation of the European Commission. OECD. http://ec.europa.eu/competition/international/multilateral/failingfirmdefence.pdf

  • European Commission (2011) Commission Staff Working Paper: mid-term review of the R&D&I Framework. European Commission, Brussels

    Google Scholar 

  • European Commission (2012) Revision of the state aid rules for research and development and innovation. European Commission, Brussels

    Google Scholar 

  • European Commission (2014) Supporting R&D and innovation in Europe: new State aid rules. Competition policy brief 1–4

    Google Scholar 

  • First H (1979) Competition in the legal education industry (II): an antitrust analysis. New York Univ Law Rev 54:1049–1130

    Google Scholar 

  • Gideon A (2012) Higher education institutions and EU competition law. Compet Law Rev 8:169–184

    Google Scholar 

  • Gideon A (2015a) The position of higher education institutions in a changing European context: an EU law perspective. JCMS: J Common Market Stud 53:1045–1060

    Google Scholar 

  • Gideon A (2015b) Blurring boundaries between the public and the private in national research policies and possible consequences from EU primary law. J Contemp Eur Res 11:50–68

    Google Scholar 

  • Gideon A, Sanchez-Graells A (2016) When are universities bound by EU public procurement rules as buyers and providers?—English universities as a case study. Ius Publicum 2016(1):1–58

    Google Scholar 

  • Greaves R, Scicluna A (2010) Commercialization and competition in the education services sector—challenges to the education service sector from the application of Articles 101 and 102 TFEU. IJELP 6:13–25

    Google Scholar 

  • Hatzopoulos V (2009) Services of general interest in healthcare: an exercise in deconstruction? In: Neergaard U et al (eds) Integrating welfare functions into EU law—from Rome to Lisbon. DJØF Forlag, Copenhagen, pp 225–252

    Google Scholar 

  • Havighurst CC, Brody PM (1994) Accrediting and the Sherman Act. Law Contemp Probl 57:199–242

    Article  Google Scholar 

  • Hoogenboom A (2015) Commodification of higher education: students, study loan systems and state aid. EStAL 4:492–502

    Google Scholar 

  • Horspool M, Humphreys M (2014) European Union law, 8th edn. OUP, Oxford

    Book  Google Scholar 

  • Huber S, Prikoszovits J (2008) Universitäre Drittmittelforschung und EG-Beihilfenrecht (English translation: external funding for universities and EC state aid law). EuZW 19:171–174

    Google Scholar 

  • Jones A, Suffrin BE (2014) EU competition law, 5th edn. OUP, Oxford

    Book  Google Scholar 

  • Jung C (2009) EGV Art. 82 Missbrauch einer marktbeherrschenden Stellung (Nizza Fassung) (English translation: Article 82 EC Abuse of a dominant market position (Nice Version)). In: Grabitz E et al (eds) Das Recht der Europäischen Union (English translation: Law of the European Union). 40th edn. Beck, Munich

    Google Scholar 

  • Kelly U et al (2009) The impact of universities on the UK economy. Universities UK, London

    Google Scholar 

  • Kelo M et al (2006) Introduction. In: Kelo M et al (eds) Eurodata—student mobility in European higher education. Lemmens, Bonn, pp 1–6

    Google Scholar 

  • Kroitzsch H (1980) Anmerkungen BGH 23.10.1979 KZR 22/78 “Berliner Musikschule” (English translation: case note BGH 23 October 1979 KZR 22.78 “Berlin Music School”). GRUR 82:249

    Google Scholar 

  • Lanzendorf U (2006) Foreign students and study abroad students. In: Kelo M et al (eds) Eurodata—student mobility in European higher education. Lemmens, Bonn, pp 7–53

    Google Scholar 

  • Lao M (2001) Discrediting accreditation?: Antitrust and legal education. Washington Univ Law Q 79:1035–1102

    Google Scholar 

  • Lübbig T (2008) § 7 Rechtsgrundlagen (English translation: § 7 Legal Bases). In: Wiedemann G (ed) Handbuch des Kartellrechts (English translation: Handbook of antitrust law), 2nd edn. Beck, Munich, pp 131–197

    Google Scholar 

  • Lübbig T, Schroeder D (2008) § 8 Einzelfragen (English translation: § 8 Selected Issues). In: Wiedemann G (ed) Handbuch des Kartellrechts (English translation: Handbook of antitrust law), 2nd edn. Beck, Munich, pp 197–292

    Google Scholar 

  • Lucey MC (2015) Should professionals in employment constitute ‘undertakings’? Identifying ‘false-employed’. J Eur Compet Law Pract 6:702

    Article  Google Scholar 

  • Marco Colino S (2011) Competition law, 7th edn. OUP, Oxford

    Google Scholar 

  • Marcos F, Sánchez Graells A (2010) A missing step in the modernisation stairway of EU competition law—any role for block exemption regulations in the realm of Regulation 1/2003? Compet Law Rev 6:183–201

    Google Scholar 

  • Mestmäcker E-J, Schweitzer H (2004) Europäisches Wettbewerbsrecht (English translation: European competition law), 2nd edn. Beck, Munich

    Google Scholar 

  • Monti G (2007) EC competition law. CUP, Cambridge

    Book  Google Scholar 

  • Neergaard U (2009a) Services of general economic interest: the nature of the beast. In: Krajewski M et al (eds) The changing legal framework for services of general economic interest. T.M.C. Asser Press, The Hague, pp 17–50

    Chapter  Google Scholar 

  • Neergaard U (2009b) Services of general (economic) interest: what aims and values count? In: Neergaard U et al (eds) Integrating welfare functions into EU Law—from Rome to Lisbon. DJØF Forlag, Copenhagen, pp 191–224

    Google Scholar 

  • Neergaard U (2011) Services of general economic interest under EU law constraints. In: Schiek D et al (eds) European economic and social constitutionalism after the Treaty of Lisbon. CUP, Cambridge, pp 174–196

    Chapter  Google Scholar 

  • Neergaard U (2013) The concept of SSGIs and the asymmetries between free movement and competition law. In: Neergaard U et al (eds) Social services of general interest in the EU. T.M.C. Asser Press, The Hague, pp 205–244

    Chapter  Google Scholar 

  • Newdick C (2007) Charities in the health care market: can trust survive NHS competition? King’s College Law J 18:415–425

    Google Scholar 

  • Nicolaides P (2013) The economics of subsidies for R&D: implications for reform of EU state aid rules. Intereconomics 48:99–105

    Article  Google Scholar 

  • Odudu O (2010) The last vestiges of overambitious EU competition law. Camb Law J 69:248–250

    Article  Google Scholar 

  • Odudu O (2011) Are state-owned health-care providers undertakings subject to competition law? Eur Compet Law Rev 32:231–241

    Google Scholar 

  • OECD (2002) Frascati manual. OECD, Paris

    Google Scholar 

  • Office of Fair Trading (2014) Higher education in England. Crown copyright, London

    Google Scholar 

  • Petronio MC (1994/1995) Eliminating the social cost of higher education: the Third Circuit allows social welfare benefits to justify horizontal restraints of trade in United States v. Brown University. Georgetown Law J 83:189–216

    Google Scholar 

  • Prosser T (2005) Competition law and public services: from single market to citizenship rights? Eur Public Law 11:543–563

    Google Scholar 

  • Prosser T (2010) EU competition law and public services. In: Mossialos E et al (eds) Health systems governance in Europe. Cambridge University Press, Cambridge, pp 315–336

    Chapter  Google Scholar 

  • Ross M (2007) Promoting solidarity: from public services to a European model of competition? Common Market Law Rev 44:1057–1080

    Google Scholar 

  • Rousseva E, Marquis M (2013) Hell freezes over: a climate change for assessing exclusionary conduct under Article 102 TFEU. J Eur Compet Law Pract 4:32–50

    Article  Google Scholar 

  • Salop SC, White LJ (1991) Antitrust goes to college. J Econ Perspect 5:193–202

    Article  Google Scholar 

  • Sanchez Graells A (2014) State aid and (university) software licensing: who’s interested? (T-488/11). How to crack a nut, 12 June 2014 http://www.howtocrackanut.com/blog/2014/06/state-aid-and-university-software.html?rq=sarc. Accessed 15 Sept 2014

  • Sauter W (2008) Services of general economic interest and universal service in EU law. Eur Law Rev 33:167–192

    Google Scholar 

  • Sauter W (2015) Public services in EU law. CUP, Cambridge

    Google Scholar 

  • Sauter W, Schepel H (2009) State and market in European Union law. CUP, Cambridge

    Book  Google Scholar 

  • Schiek D (2012) Economic and social integration—the challenge for EU constitutional law. Edward Elgar, Cheltenham

    Google Scholar 

  • Simon S (2009) 9. Teil. Fusionskontrollverordnung (English translation: Part 9 Merger Control Regulation). In: Loewenheim U et al (eds) Kartellrecht (English translation: Antitrust Law). Beck, Munich, pp 1249–1536

    Google Scholar 

  • Stachtiaris TJ (1993/1994) Antitrust in need: undergraduate financial aid and United States v. Brown University. Fordham Law Rev 62:1745–1768

    Google Scholar 

  • Steyger E (2002) Competition and education. In: de Groof J et al (eds) Globalisation and competition in education. Wolf Legal Publishers, Nijmegen, pp 275–280

    Google Scholar 

  • Suarez C (2014) Competition in the HE sector. Competition in the higher education market

    Google Scholar 

  • Swennen H (2008/2009) Onderwijs en Mededingsrecht (English translation: Teaching and Competition Law). Tijdschrift voor Onderwijsrecht en Onderwijsbeleid 4:259–280

    Google Scholar 

  • Szyszczak E (2015) Services of general economic interest and state measures affecting competition. J Eur Compet Law Pract 6:681–688

    Article  Google Scholar 

  • Szyszczak E (2016 (forthcoming)) Services of general economic interest and state measures affecting competition. J Eur Compet Law Pract 7

    Google Scholar 

  • Townley C (2009) Article 81 EC and public policy. Hart, Oxford

    Google Scholar 

  • van de Gronden J (2004) Purchasing care: economic activity or service of general (economic) interest? Eur Compet Law Rev 25:87–94

    Google Scholar 

  • Vincent-Jones P (2006) The new public contracting. OUP, Oxford

    Google Scholar 

  • Wendt I, Gideon A (2011) Services of general interest provision through the third sector under EU competition law constraints: the example of organising healthcare in England, Wales and the Netherlands. In: Schiek D et al (eds) European economic and social constitutionalism after the Treaty of Lisbon. CUP, Cambridge, pp 251–276

    Chapter  Google Scholar 

  • Whish R (2015) Competition law, 8th edn. OUP, Oxford

    Book  Google Scholar 

Download references

Author information

Authors and Affiliations

  1. Liverpool Law School, University of Liverpool, Liverpool, UK

    Andrea Gideon

  2. Centre for Law and Business, National University of Singapore, Singapore, Singapore

    Andrea Gideon

Authors
  1. Andrea Gideon
    View author publications

    You can also search for this author in PubMed Google Scholar

Corresponding author

Correspondence to Andrea Gideon .

Rights and permissions

Reprints and permissions

Copyright information

© 2017 T.M.C. Asser Press and the author

About this chapter

Cite this chapter

Gideon, A. (2017). Higher Education Institutions and EU Competition Law. In: Higher Education Institutions in the EU: Between Competition and Public Service. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-168-5_3

Download citation

  • DOI: https://doi.org/10.1007/978-94-6265-168-5_3

  • Published:

  • Publisher Name: T.M.C. Asser Press, The Hague

  • Print ISBN: 978-94-6265-167-8

  • Online ISBN: 978-94-6265-168-5

  • eBook Packages: Law and CriminologyLaw and Criminology (R0)

Publish with us

Policies and ethics

Societies and partnerships

Search

Navigation