SGEIs

Some of the exemptions mentioned in the last section (e.g. exemption of SGEIs below €15 M in the SGEI Decision) require the services in question to be SGEIs. Further, there may be potential to exempt services as SGEIs more generally if the exemptions above do not apply or in the case of potential infringements of Article 102 TFEU. As we have seen above in the relevant section (Sect. 5.3.14) for England services need to be in general interest, be entrusted to the university, the application of the competition rules would have to obstruct the service in question and the development of trade must not be affected in such a way that it would be contrary to the EU’s interests for them to qualify for exemption under Article 106(2) TFEU. In the Netherlands, the interviewees generally believed that the research conducted in their university was in the general interest. A few interviewees mentioned that academics were divided into those who believed impact- focussed and applied research would be more in the general interest, while others believed that curiosity driven, basic research would, in the long term, serve the general interest better and had more academic integrity. It was noted that a scientific interest was needed in both cases, though. A few interviewees, however, pointed out that occasionally there might be an economic necessity for conducting research for particular interests even without a scientific interest (e.g. contract research for a company for full costs) even though currently that was seldom the case. One interviewee in a category 1 university mentioned that if research seemed too far removed from the universities conception of what it should be doing or was unethical or illegal, they would not conduct it.

From these statements, it seems as if the universities would only pursue research if there is a scientific interest, unless they felt economically required to do other research to attract income. Except for the latter cases a general interest (i.e. the advancement of science) might thus be assumed. As with England, more than just such a general interest might be required for research to be an SGEI, however, and clarity can only be achieved through a ruling by the Court. As regards the question of whether the SGEI is entrusted to the universities, the interviewees named the WHW (Wet op het hoger onderwijs en wetenschappelijk onderzoek; Higher Education and Research Act) as an act entrusting universities with the task of research. While this tasks them with research in general, this might not be precise enough to fulfil the conditions on entrustments acts in the post Altmark legislation.[1] Grant agreements from public bodies might, in that case, be regarded as acts entrusting universities with the specific task in question. If the application of competition law would obstruct a potential SGEI, proportionality and effects on trade would have to be evaluated on a case by case basis.

  • [1] See, for example Article 4 of Decision 2012/21/EU. See also generally on the post Altmarklegislation Chap. 3 Sect. 3.3.5 text surrounding n 268-272.
 
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