Interim Conclusion

Overall, the funding situation was viewed critically by the interviewees, as public funding was conceived both shrinking in general and increasingly concentrated on research with impact and research in certain areas. It was mentioned that, in particular, academics perceived this as creating unnecessary administrative hurdles and causing tensions with academic freedom. The interviewees expected further concentration of public funding in certain topic areas and institutions making it necessary to look for alternative funding sources. Additionally, the interviewees saw the importance of open access publishing and new media technologies as becoming increasingly relevant for research in the future.

The interviewees overall were not particularly aware of competition law themselves, as this would have been implemented into university policy and they would just follow the policy as such. If any problem would come to their attention they would consult separate units or external solicitors rather than dealing with the issue themselves. They thus would also not themselves make a distinction between economic and non-economic activities.

In areas of economic activity, market prices or full costs plus profit would usually need to be charged which, in reality, despite the use of TRAC fEC to calculate the costs, does not always seem to be the case. Therefore, there might be instances of state aid or predatory pricing, if HEIs were dominant. Furthermore, the exclusion of partners (be it for ethical reasons), the imposition of publication requirements and the prohibition of subcontracting by funders might potentially be regarded as anti-competitive if in an area of economic research, imposed onto partners and if it creates anti-competitive effects. If IPR exploitation is of an economic nature, any economically unjustified advantageous conditions for undertakings, be it to make innovation in the public interest accessible, could be regarded as state aid. Also, contract conditions dictated upon undertakings such as the limitation of sublicensing could be regarded as anti-competitive and universities would have follow the Research Framework as regards the acquisition of IPR by the partner which usually means demanding market prices for any rights the partner obtains or exploits. Another issue which came up in an interview is the question of whether the topic of a certain piece of research could, in itself, be anti-competitive. Generally market division seemed not to be present in England, however, envisaged facility sharing endeavours might be regarded as anti-competitive if certain partners were excluded discriminatorily and/or market prices were not paid. State aid law could also be infringed if public calls are classified as economic activities and have not been commissioned according to the Altmark criteria or the rules in the Research Framework. Finally, if advantages are bestowed upon companies in areas of economic activity through staff knowledge, in particular IPR creation or Ph.D. students essentially conducting a study for the private sector, this could potentially be regarded as state aid.

However, depending on the individual case, there might be exemption possibilities for some of these practices under Article 101(3) TFEU or Article 107(2) and (3) TFEU and the related secondary legislation. If the undertakings in question have a low market share and the infringement in question is an effect restriction or the amount of aid received by an undertaking is below €200,000 (€500,000 for SGEIs) over three fiscal years the infringements may also not fall under Article 101(1) and 107(1) TFEU in the first place, as they would not be deemed appreciable. Projects infringing the state aid rules, which could be classified as SGEIs, could mostly benefit from Decision 2012/21/EU, as projects seem to be (almost) always under the €15 M threshold. More generally, it might be possible to exempt some potential breaches of competition law as SGEIs under Article 106(2) TFEU, but that would require that a SGEI had been entrusted to the undertaking in question.

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