Interim Conclusion

It has been shown that many activities conducted by HEIs could potentially be in conflict with EU competition and state aid law. The result would not only be that the actions would have to be discontinued, but, according to Articles 23 and 24 of Regulation 1/2003, fines and periodic penalty payments until the infringement is stopped can be imposed. Additionally, the infringement of competition law could constitute a tort under national law and give rise to actions for damages.[1] Thus, aside from the question of whether the application of EU competition law leads to tensions with national policy concepts, it might also lead to financial problems. Facing an imposed fine the HEIs would have to cut back on their resources or increase prices (tuition fees, research costs and prices of other activities such as student accommodation or meals) which would, either way, endanger their mission of providing high quality and equally accessible teaching and research in the public interest.[2]

There are, of course, still exemption possibilities for infringements of competition law under Articles 101(3), 107(2) and (3) and 106(2) TFEU and secondary legislation. This might, however, make the conduct of HEIs increasingly complicated from a legal/administrative perspective and the exemptions might not capture every situation. As regards the SGEI exemption, for example, the performance of the SGEI might not be seen as obstructed by the competition rules, especially if a strict necessity test is applied.[3] Especially in systems such as the English one (which is consciously being turned into a market system) it might be difficult to then rely on Article 106(2) TFEU.[4] Even if the EU institutions might adopt a more careful approach regarding higher education, since this area is mainly the responsibility of the Member States and potentially even regarding research despite it having become a shared responsibility due to the caveat in Article 4(3) TFEU and potentially also due to EU research policy encouraging commodification of research, they might not apply the law themselves. Since Regulation 1/2003 the enforcement of competition law is decentralised and therefore much depends on the NCAs. As the national case law examined in this chapter has shown NCAs were less reluctant to apply competition law to educational institutions.[5]

  • [1] Directive 2014/104/EU on certain rules governing actions for damages under national lawfor infringements of the competition law provisions of the Member States and of the EuropeanUnion OJ [2014] L 349/1. See also C-295-298/04 Manfredi (Judgment of 13 July 2006,EU:C:2006:461) and C-453/99 Courage (Judgment of 20 September 2001, EU:C:2001:465).
  • [2] Similar Greaves and Scicluna 2010, pp. 21, 24.
  • [3] See Sect. 3.2.3.3 above on the test.
  • [4] Similar regarding health care markets see Wendt and Gideon 2011, p. 274.
  • [5] Similar Greaves and Scicluna 2010, p. 24.
 
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