Exclusionary Abuses

Exclusionary abuses are aimed at driving competitors out of the market and retaining or strengthening the dominant position. Such abuses could lie in technical restrictions, predatory pricing, refusal to issue licenses to competitors, refusal to supply competitors and abusing a monopoly (for example, excluding competitors despite not being able to fulfil demand).[1]

With regards to HEIs it would be possible that problems arise concerning low tuition fees or low prices for research contracts. Such low prices could be regarded as predatory pricing which is aimed at driving (or keeping) competitors out of the market. Due to their financial support from the state, public HEIs are in a position to provide research for lower prices than their competitors and to hold tuition fees at a low level. Disregarding for now what that could entail in state aid terms,[2] this might cause a problem with Article 102 TFEU.[3] The Dutch NMa had already had to deal with a case in this respect involving music schools.[4] In contrast to the German music school case, wherein a vertical cartel between the selfemployed teachers and the music school was in question, this case involved a collective dominant position of public music schools. The schools were accused of predatory pricing by a competitor. As the schools were bound to certain prices by law and had no free choice the NMa could not find an abuse on the side of the schools. Furthermore, it was not in the authority of the NMa to review national legislation. This would sit differently with regards to EU law, since such national legislation could potentially be challenged under Article 102 in conjunction with 106(1) TFEU.

Furthermore, as in the scenario under Article 101 TFEU, any agencies, such as UCAS, which have a significant influence on market access for study places, could get into conflict with Article 102 TFEU. It would depend on whether the collusion aspect is more pronounced or whether the case concerns unilateral conduct to determine which provision would be applicable. Under Article 102 TFEU such agencies could potentially abuse their dominant position as such, if they are regarded as undertakings themselves, while a group of HEIs acting together in such a body might be seen as abusing collective dominance. The abuse could lie in not allowing newcomers any access to the distribution network, as this could be regarded as controlling market access. If the entry criteria to the distribution network are based on the HEI’s home Member State this seems particularly problematic given that it contributes to the partitioning of the internal market. If the HEIs in question cannot fulfil demand, this would be especially abusive conduct. Similarly any specific information which such bodies may hold could be an essential facility and it may be problematic to limit access to certain providers.[5] Again, under EU law, it does not play a role if national law prescribes such practices as the national law can also be challenged according to Article 106(1) TFEU in conjunction with Article 102 TFEU. Such challenges might be more severe under Article 102 TFEU, as it contains no express exemptions and exemptions are thus mainly possible under Article 106(2) TFEU.

Finally, abuse of dominance may be present in the relationship between HEIs which are not in a position to issue their own degrees and those HEIs validating their degrees if the latter are in a dominant position. In its report on the situation in England the OFT states that it has received a variety of concerns in this regard including that the degree awarding bodies dictate fee levels, refuse validation for competing courses, withdraw validation on short notice, take unreasonably long to validate or impose overly stringent conditions. Yet, the OFT did not find any evidence for such practises and also pointed out that as regards some of these examples the conduct would only be anti-competitive if there was no option to switch the validator which is why this would not be an immediate area of action.[6] This is, however, not to say that no such situations are present in this or other Member States’ HEI systems. The CMA later also considered this issue and pointed especially to the fact that the more competitive, market based system, which the English HEI sector has become, may encourage refusal to validate competing courses and that stringent quality assurance might equally make validators reluc- tant.[7] There is thus not only some indication that competition law can become applicable to such situations, but, indeed, also that it can create further commodification, as envisaged policy changes aim at making it easier for new (commercial) providers to get degree awarding powers and for validation to potentially be conducted by a new sector regulator rather than by HEIs in the future.[8]

  • [1] See Jung 2009, para 186 seq.
  • [2] On state aid see below Sect. 3.3.5.
  • [3] Similar Greaves and Scicluna 2010, p. 18.
  • [4] Besluit bk005-9801available on www.nmanet.nl/Images/0005BEMP_tcm16-97472.pdf. Onthe case see also Swennen 2008/2009, p. 275, Gideon 2012, p. 177.
  • [5] The OFT in its report expressed some concern regarding UCAS data sets in the context ofconsumer choice and envisaged that the CMA conducts further work on the matter (OFT 2014para 4.39 seq.).
  • [6] OFT 2014 para 1.16, 6.8 seq.
  • [7] CMA para 5.30 seq.
  • [8] BIS 2016, p. 29 seq.
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