Higher Education Institutions and EU Competition Law

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.

Keywords Competition law and higher education institutions • Universities as undertakings • Higher education and research as economic activities • Services of general economic interest • Framework for state aid for research and development • Anti-competitive practices of higher education institutions • Price fixing of tuition fees • General Block Exemption Regulation • Full costing in universities

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