Interim Conclusion

Overall the funding situation was viewed critically since public funding was conceived as shrinking and increasingly concentrated only on certain areas and for research with impact. This was regarded as being potentially limiting to academic freedom and basic research. Despite the widespread criticism, the interviewees expected this development to continue and for the Netherlands to follow the path taken in England. Unlike in England, all interviewees were aware of competition law and seemed to have a relatively comprehensive knowledge of it. In government policy there are rules referring to, in particular, EU state aid law which seem to indicate that there is awareness that these might be economic activities. The main areas which might be erroneously classified as non-economic could be themed public calls and charitable donations which could in particular circumstances amount to commissioning a service.

If areas are erroneously identified as non-economic and no full costs are applied, this could amount to state aid or be regarded as predatory pricing. The rules on IPRs seem to be generally unproblematic. Only anti-shelving clauses if imposed on undertakings or subsidies to companies willing to exploit university IPRs might potentially be regarded as anti-competitive, but there may be exemption possibilities. Unlike in England there seemed to be rather strong indications for potential market division. The placement of infrastructure in only one or a few universities, health insurers determining specialisation in university health research, limitations on the establishment of new universities, division of research specialisation and no competition policies or agreements might be regarded as problematic from a competition law perspective. Tensions might also occur if public calls are economic activities and have not been commissioned in a nondiscriminatory way for prices reflecting market value. Finally, if advantages are given to companies through staff knowledge, in particular IPR creation or favourable contract conditions given to staff owning companies, this could potentially be regarded as anti-competitive, if an economic activity is taking place.

As in England, depending on the individual case, there might be possibilities of exemption. As regards restrictions of Article 101(1) TFEU, the Specialisation BER in particular may be applicable. However, this would depend on market shares. The sums provided for public research are much higher than in England and thus there is more room for certain potentially anti-competitive public calls to fall outside the scope of the de minimis rules, the GBER and the SGEI legislation. While the thresholds in the new GBER are much higher now, certain conditions would have to be fulfilled, especially as regards transparency. When it comes to SGEIs (in the specific legislation or generally under Article 106(2) TFEU), these would require a service of general interest to be entrusted to the undertaking in question. Whilst the WHW might not be precise enough to serve as entrustment act, individual grant agreements by public funders might fulfil this requirement.

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