Examining EU Law Constraints on HEIs

HEIs are investigated as a field where Member States avoid establishing supranational law, but where HEIs, nevertheless, can come within the ambit of directly applicable EU law. This could especially be the case if Member States pursue national policies of commercialisation thereby increasing the likeliness of applicability of the economic provisions of directly applicable EU law. Therefore, provisions of EU law seemingly unrelated to HEIs such as those on citizenship, the fundamental freedoms, competition and state aid can ‘spill over’ and might lead to unintended consequences for national policy choices. This may even trigger further commercialisation of the sector, which, in turn, may endanger the traditional non-economic missions of European HEIs. The book provides an in-depth appreciation of how EU law and policy (could) impact on the HEI sector with a specific focus on potential constraints from EU competition law on research in HEIs as an example of exposure to economic constraints.

This question is investigated from political and social science perspectives as well as through legal doctrinal analysis of legislation and case law, culminating in a qualitative empirical study covering ten universities in three Member States. Research in publicly funded research intense universities has been chosen as the field for the empirical study, since market structures are increasingly being introduced in this area and HEIs thus compete with each other and with other research providing actors. Research, therefore, has the potential to fall into the ambit of the more economic provisions of EU law and thus lends itself as an illustrative example of the constraints that may arise for the sector. EU competition law has been chosen, not only because there is little research on its potential impact, but also because this impact has the potential to demand significant changes in HEI practice, as already evident in the previous Research Framework’s[1] requirement to introduce full costing for research in publicly funded research organisations in

Europe, including HEIs. The doctrinal and empirical investigation of competition law implications will demonstrate that even more demands for commercialisation of public universities may derive from EU competition law.

The book is structured into six chapters (including this introductory chapter). The remainder of this chapter will be dedicated to illuminating the historical and theoretical background. It will be shown how HEIs moved away from their traditional mission to become more economic in nature; increasing the likeliness of potential spill-over from the economic provisions of EU law. Chapter 2 will explore the current EU and extra-EU policies showing that Member States were reluctant to use the supranational method of integration in relation to HEIs. It will then demonstrate in overview the potential of spill-over from directly applicable EU law, namely from Union citizenship, the free movement provisions and competition law.

Chapter 3 continues this study in more detail in the area of EU competition law. It will first assess the concept of ‘undertaking’ and services of general economic interest (SGEIs) 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. The second part of Chap. 3 then conducts an in-depth legal-doctrinal analysis of potential constraints on HEIs arising from competition and state aid law. We will see that, whilst the application of the competition rules might occasionally aid ‘consumers’ (students) or HEIs themselves, there are situations where they might have a detrimental social effect (e.g. when tuition fees are fixed at a low level to allow broader access) or more generally clash with national or university policies (e.g. they might require the opening of bodies distributing study places to foreign and commercial providers or require full costing and pricing at full cost plus levels for research).

Chapter 4 prepares the groundwork for the empirical study by setting out which countries have been chosen for the study and introducing a common approach to discussing their research systems. Each country is then explored in a separate subchapter after which a section provides a tentative overview of potential conflicts with EU competition law. Chapter 4 finds that the systems investigated differ in a variety of ways from the general national expenditure on research and the overall character of the system to the importance of individual sectors and the extent to which the recent trend of commodification has influenced the research systems. As regards research in HEIs, the importance of competitive factors in funding allocation has increased in all three systems, but it plays by far the most significant role in England where competitive factors even play a major role in generic research funding allocation. The growing importance in non-generic funding is associated with a variety of concern, most significantly with threats to academic freedom and budget constraints due to matching requirements as nongeneric funding is not always provided at full cost levels. From a competition law perspective, we will see that differentiation between non-economic research, which does not fall under competition law, and research services, which do, is more difficult than it may appear, since this line can be fluid. If an activity does fall under competition law potential tensions in all three systems could arise from this with national research policies on HEIs. However, the more economically oriented the system, the more frequently this may happen.

The empirical study itself is contained in Chap. 5. In its first subchapter the methodology of the empirical study is explained showing, inter alia, how the universities under scrutiny have been chosen and how the interview questions have been drafted as well as how the interviews will be analysed; namely by employing a framework developed on the basis of the results of Chaps. 3 and 4. This is followed by a subchapter on each country discussing the economic constraints in the relevant system as experienced by interviewees, their awareness of and the potential constraints arising from EU competition law. In all three countries interviewees expected the commodification tendencies to continue and there was some criticism for this development. However, the more detailed sentiments about the research systems as well as the awareness of competition law of the interviewees differed between the countries which seems to correspond with the general character of the research systems. On the basis of the information received from the interviewees, a more in-depth appreciation than in Chap. 4 of the question in how far competition law becomes applicable is then provided in Chap. 5. Yet, as will be seen, this remains a difficult question. While some potential tensions with competition law discussed in previous chapters do not materialise based on the empirical information gathered, some in fact could cause concerns and others have been detected. Of course, there may still be the possibility of the application of exemptions, but these might not capture every situation and, in any case, might make the conduct of HEIs increasingly complicated from a legal/administrative perspective. Given the current situation, HEIs are thus advised to pay increasing attention to competition law.

Chapter 6 will connect the results of the empirical study with the previous chapters thereby assessing how applying the EU’s economic constitution to HEIs may lead to unforeseen consequences including further commodification which could endanger the traditional non-economic mission of European HEIs. The constraints faced by the sector are then contextualised in the wider debate and some recent attempts by the Commission to align EU research policy with competition law are critically discussed. It is concluded that these attempts seem equally insufficient, as they do not necessarily clarify the legal position, are still fragmented, are decided upon entirely by the Commission and do not appear to necessarily reflect the views of the general public or stakeholders in HEIs. Therefore, an outlook is given of potential alternative strategies, as unlikely as their realisation in the current Eurosceptic climate may be, for a more coherent EU level policy on HEIs which moves away from the current tendency towards commodification and truly clarifies the legal position of HEIs under EU law, though the details of such approaches will have to be left to future research.

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