Introduction

Chapter 3 concluded that HEIs may be classified as ‘undertakings’ under EU competition law if they offer services on a market. It has also been shown that requiring compliance from HEIs with the EU competition law regime may create tensions with their traditional mission of providing research and teaching freely and equally accessible in the public interest.[1] The following chapters are dedicated to empirically examining university practices as well as the perceptions of key officers. By this research design the book aims to answer the questions of whether there is indeed increased exposure to EU competition law in countries where commodification of HEIs[2] is further developed, what consequences such exposure might have and also whether professional actors in the field are aware of the risks.

Obviously, it is only possible to empirically analyse a small sample within the limited scope of a book. The sample chosen here is research in (public) HEIs in Germany, England and the Netherlands. Research has been chosen as the area of analysis, because it is a particularly competitive field;[3] not only do private and/or public HEIs compete with each other, but also other private and public research organisations conduct research. It is, therefore, to be expected that some research is conducted in a market setting, meaning that competition law may be applied. Furthermore, as mentioned in Chap. 1 (Sect. 1.1) it is a field which has thus far hardly been explored from a competition law perspective. The three national systems chosen for comparison differ in terms of their welfare state models, which makes it likely that the degree to which university research has been commodified also differs. These differences will be relevant to the analysis of how EU competition law, which is analysed as an important element of EU economic law, impacts on the systems.

In Esping-Andersen’s categorisation of welfare states, which is based on the questions of how far they de-commodify, socially stratify and rely on the market and the family,[4] Germany is categorised as conservative, the Netherlands as social democratic and the UK as liberal.[5] A liberal system relies highly on the market with a low-degree of de-commodification and enables social stratification. A conservative system has a higher degree of de-commodification, but due to its conservative values it relies more on the family and retains social stratification. Finally, a social democratic system has a high degree of de-commodification, decreases social stratification and has no particular reliance on either the market or the family.[6] Whilst in further research these categorisations have been confirmed, overwhelmingly for Germany and to a large extent for the UK, the Netherlands has been categorised in many different ways within and beyond Esping-Andersen’s original categories.[7] It has even been suggested that the Netherlands are incapable of categorisation.[8]

If one turns towards the commodification of HEI systems, one can observe that all of these countries’ HEIs have been increasingly developed to react to market pressures and compete with commercial sector entities. Yet, the degree to which this commodification has progressed differs; England has progressed furthest along the path to commercialisation of the activities of its HEIs[9] (though without much litigation or clear policies on the legal implications),[10] whilst in Germany only the first steps have been taken in this direction.[11] This positioning is also mirrored in the reactions of these Member States to the financial crisis. While Germany is amongst those states which have, inflation considered, increased spending on HEIs by 20 % or more since 2008, the Netherlands are located amongst those having retained a similar level of spending and the UK is amongst the states which decreased spending by 20 % or more and is relying on high tuition fees for funding the HEI sector instead.[12] The different degrees of commodification might have different consequences as to the assessment of HEIs as ‘undertakings’ and thus on the pressures that might arise from competition law.

At the same time, these Member States also represent very different governance structures. Germany is a federal republic and for this reason the organisation of research funding can vary between the federal states. Specific attention will be paid to the states of Bremen, Berlin, Bavaria and Baden-Wurttemberg, as these are the states in which the universities selected for the empirical study are located.[13] The Netherlands, on the other hand, is governed in a centralised manner. Finally, the UK is a devolved state with four separate countries each with largely independent structures.[14] As it would not be possible to analyse all four devolved countries here and since England has the highest degree of commodification regarding HEIs, only England, which itself has a rather centralised system of governance, will be analysed.

In order to assess the relevance of competition law for HEI research in the three countries, it is necessary to provide an overview of their research systems which is the aim of this chapter.[15] The subchapters (Sect. 4.2 on England, Sect. 4.3 on the Netherlands and Sect. 4.4 on Germany respectively) will start with a general overview of the systems; the general funding streams and which entities conduct research will be introduced. They will proceed to a more in-depth examination of research in HEIs. Firstly, how far research in HEIs is an official public task and if there are any limitations as to privately funded research in HEIs will be assessed. Secondly, public funding of HEI research will be evaluated and the extent to which it is provided generically or on a project related basis will be identified. Thirdly, an overview of funding from non-public sources will be provided. Finally, how far full costing for research is applied will be examined. The subchapters will end with an interim conclusion integrating the results. The country specific subchapters will be followed by a tentative competition law analysis (Sect. 4.5) which will focus on research funded by national public, private and third sector sources (rather than by EU or international funding), as this book investigates EU competition law constraints on research in public HEIs as an example of tension between EU law and national public service concepts more generally. The chapter conclusion (Sect. 4.6) will then bring together the results for all three countries.

  • [1] On the mission of public HEIs see Chap. 1 Sect. 1.3.1 above.
  • [2] On commodification of HEIs see Chap. 1 Sect. 1.3.3. above.
  • [3] See Enders 2007, p. 19; Candemir and Meyer 2010, p. 511.
  • [4] Esping-Andersen 1990, p. 26 seq.
  • [5] Ibid p. 52.
  • [6] Ibid p. 26 seq.
  • [7] For an overview see Ferragina and Seeleib-Kaiser 2011.
  • [8] Ibid p. 591 with further references.
  • [9] Candemir and Meyer 2010, p. 511.
  • [10] Aside perhaps from the OFT/CMA reports discussed in Chap. 3 (OFT 2014; CMA 2015).
  • [11] See Enders 2007, p. 19; Jansen 2010, p. 43.
  • [12] EUA 2015, p. 9, 11.
  • [13] On the selection of the universities see below Chap. 5.
  • [14] It would go beyond the scope of this book to discuss differences and similarities betweendevolution and federalism. See further Horowitz 2006-2007.
  • [15] A very condensed and earlier version of this chapter has been published as Gideon 2015.
 
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