Interim Conclusion on HEIs

Increasing commodification of HEIs in Europe makes it more likely that competition law becomes applicable to their teaching and research activities. In such cases, it would normally be the HEI which would be the undertaking. University associations (e.g. the Russell Group in the UK) do not usually have sufficient ties as regards ownership and control with the HEIs they represent to be regarded as a single economic unit,[1] though they could be an association of undertakings inducing collusion under Article 101 TFEU (e.g. by information exchange about prices or other confidential information) which will be implemented at the individual HEI level as will be discussed below (Sect. 3.3.2). While individual institutes are likely to mostly not be independent enough to be regarded as an undertaking separately from the HEI, individual academics may potentially be under specific circumstances (i.e. if they conduct services for a fee, bear the risk of the transactions and compete excessively for the contracts).[2] However, in most circumstances, one would have to assume that it is the HEI which would be the undertaking for the purposes of competition law.

If HEIs are regarded as undertakings and are in danger of infringing competition law, one would have to raise the question of whether they could be exempted under Article 106(2) TFEU. That would mean that the specific task would still fall under their general interest obligation (research in the public interest and teaching) and could not be achieved under economically acceptable conditions if the competition rules were to be enforced. This would, however, depend on the individual case. It would not be possible for a Member State to simply declare all tasks undertaken by HEIs as SGEIs, but a specific SGEI would have to be entrusted to them. Additionally, the proportionality requirement might necessitate questioning whether less severe measures could have been used and the demand also has to be met in markets for which exclusive rights are granted. Finally, intra-Union trade must not be affected to an extent contrary to the Union’s interest. It is, however, thus far not quite clear what the latter criterion entails.[3]

  • [1] On the concept of a single economic unit under EU competition law see further Jones andSufrin 2014, p. 137 seq.
  • [2] See Lucey 2015 on the possibility of employees being regarded as undertakings.
  • [3] Also on SGEIs and HEIs Steyger 2002, p. 278 seq; Swennen 2008/2009, p. 266; Gideon2012, pp. 175, 183 seq; Gideon 2015b, 62.
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