Consequences Resulting from the Application of EU Competition Law on HEIs

The goals of competition law are a controversial field and depend, inter alia, on the school of thought one is following. While economic efficiency and consumer welfare (in the more general sense rather than actual consumer protection) are more widely acknowledged goals, some schools of thought follow broader notions and aim at more generally protecting the competitive process which sometimes may include protecting competitors.[1] In the EU context, market integration has equally always been an, albeit controversial, aim.[2] Despite the differences, it seems clear that the original focus of competition law were rather private companies than public services. Due to the general interest objectives that public services pursue, application of competition law to the latter may lead to tensions. The aim of the following sections is to explore possible consequences of EU competition law for HEIs.

EU competition and state aid law are located in Title VII, Chap. 1, Articles 101-109 TFEU. The substantive provisions are Article 101 TFEU (prohibiting any collusion between undertakings which negatively impacts on competition),

Article 102 TFEU (forbidding the abuse of a dominant market position) and Article 107 TFEU (disallowing state aid). Furthermore, mergers between undertakings are subject to EU merger control if they have a Union dimension. In the following, after some initial deliberations on market definition (Sect. 3.3.1), these provisions will be explored further with regards to potential constraints for HEIs (Sects. 3.3.2—3.3.5). This does not entail that the application of competition law could not also have positive effects in some cases, for example, when HEIs fix prices at an unreasonably high level. However, these are consequences envisaged by competition law, while this subchapter is aiming at illuminating potential unforeseen (negative) consequences.

  • [1] 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.
  • [2] Odudu 2010; Chirita 2014; Sauter 2015, p. 113.
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