Interim Conclusion

With the liberalisation of ever more public services, an increasing number of activities have been classified as economic activities and competition law has therefore been applied to them. This led to the exemption in Article 106(2) TFEU playing a more significant role and the Court seemingly becoming slightly more relaxed in the application of the exemption (e.g. it only requires that a measure allows an undertaking to conduct its task under ‘economically acceptable conditions’ rather than requiring the viability of the undertaking to be threatened). Nevertheless, ‘by applying exceptions instead of ruling activities out of bonds, the authorities involved evidently gain leverage over the undertakings/entities involved’.[1]

Neither research in the public interest in public HEIs nor education has traditionally been regarded as an economic service. However, the Court has, in more recent judgments regarding the free movement provisions, declared primarily privately financed education to be a service. The Commission has, over the last decade, stated in a couple of documents that it intends to import the reasoning developed in internal market law into competition law and that the classification of an educational activity as economic or not is not a fixed definition. Instead it is linked to the way in which the Member States organise their systems. If market mechanisms are introduced, the activities can become economic activities. A very similar distinction is made for research in the new Research Framework (though the new version of the framework has also created some confusion as to some of the details). If, therefore, HEIs can be regarded as undertakings for certain activities, they have to comply with the competition rules unless they can be exempted by Article 106(2) TFEU. The ongoing commodification of higher education and research in many Member States makes it seem likely that certain activities in public HEIs, and, in some Member States, potentially the whole higher education system, could already be regarded as economic. This tendency may increase in the future. HEIs would thus have to be prepared to take competition law into account.

  • [1] Sauter 2015, p. 122. See also ibid pp. 118, 227.
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