Economically Unjustified or Discriminatory Contract Conditions

The interviewees saw the major contractual problem which needed to be solved to be the desire of some companies for secrecy versus the aim of the university to disseminate knowledge through publication, further exploration of results and research informed teaching. Additionally, as an interviewee working on business collaborations mentioned, it was a concern for the university that research needed to be ‘result-open’ rather than geared towards making a specific invention. An invention should always be an added bonus that occurred in ‘result-open’ research. Another interviewee mentioned that universities, in his opinion, should exclude ethically questionable research. He mentioned that he had heard that companies had specifically come to Dutch universities to undertake animal testing as animal protection laws in other countries would be stricter. He found this especially controversial if the testing is merely standard not containing any scientific interest. Beyond that, interviewees did not know of any particular conditions for partners. Generally, however, as the business collaboration officer stated, it is important for universities to establish strategic long-term relationships due to the benefit gained from increasingly substantial knowledge which is created in a line of common projects. Therefore, it was an aim in contract negotiations to find solutions both sides can benefit from.

This would sometimes be difficult, according to a legal officer due to the expectations which companies have and which would differ between companies. As an example he mentioned the general culture of ‘BV Nederland’; namely the view of the Netherlands as a trading nation where the assumption is commonly held that if one supports Dutch industry the whole nation will prosper. Due to this mind-set Dutch companies expected to gain advantages. This would be especially true with regards to publicly funded universities as the companies, as tax payers, expected returns. According to him this mind-set had led to many incidents of anti-competitive behaviour in the past in other sectors. More generally, there might potentially be other issues that needed to be resolved in the negotiations.

As explained for England (Sect. 5.3.6), generally requirements on dissemination, leaving research ‘result-open’ and, perhaps, ethics will not cause any concerns, unless perhaps if dictated upon undertakings by a collusion or dominant undertaking in the area of economic research in a way that causes anti-competitive effects. However, even then there may be possibilities to exempt this. If companies, due to a specific corporate culture in a country or sector, try to impose anticompetitive conditions on HEIs, as they partly at least appear to attempt, HEIs may also be able use competition law to their advantage by reference to the relevant provisions of national and EU competition law in contract negotiations or even by relying on their rights in enforcement.

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