As has been discussed in Chap. 3 (Sects. 3.3.2 and 3.3.5), Article 101 and 107 TFEU and secondary legislation provide for exemptions for certain breaches of competition law, which could be relevant for HEIs, many of which depend on market share or the amount of the aid. It would thus be impossible to assess in how far they are generally applicable without further knowledge. Article 102 TFEU does not include such exemptions. If the service qualifies as a service of general economic interest (SGEI), Decision 2012/21/EU[1] exempts aid below €15 M per annum. Finally, the research activities of HEIs might more generally be exempted as SGEIs under Article 106(2) TFEU. As discussed in Chap. 3, for a service to qualify as an SGEI it has to qualify as a public service obligation and has to be entrusted to the undertaking in question. For the exemption under Article 106(2) TFEU it would also be required that the SGEI is then be obstructed by the application of the competition rules in a disproportionate way. Whilst in Germany and the Netherlands legislation is making research a statutory task of HEIs, this might in itself not be sufficiently precise to be regarded as an entrustment act. Whether or not the service in question is in the general interest, the application of the competition rules does obstruct it and the question of whether this is proportional would have to be looked at in the individual case.

  • [1] Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty onthe Functioning of the European Union to State aid in the form of public service compensationgranted to certain undertakings entrusted with the operation of services of general economicinterest OJ [2012] L 7/3.
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