Interim Conclusion

Since investments are high in Germany, the research funding situation was generally seen more positively compared to other countries. However, whilst generic and DFG funding remain the most important sources and these allow researchers to unfold their academic freedom, the increasing importance of steering calls was regarded as somewhat problematic. It was also felt by some interviewees that universities suffer from a mission overload and that the current problems may lead to less innovation, the extinction of certain subjects and a separation of teaching and research. All interviewees were aware of competition law, however, the focus here was mainly the previous Research Framework’s requirements of full costing and separate accounting for economic activities. The interviewees all explained that their universities differentiated between economic and non-economic activities. However, this determination might potentially not always be in accordance with competition law particularly since the involvement of public funding seemed to be regarded as automatically making an activity non-economic in nature.

If areas are erroneously identified as non-economic and thus are not appropriately accounted and/or neither market price, full costs or maximum economic benefit negotiated at arm-length are applied, this could amount to state aid or be regarded as predatory pricing. Exchange about costing systems, depending on what kind of information is exchanged, could also be anti-competitive. Universities do not seem to prefer partners in an anti-competitive way, even though public calls seem to sometimes require certain partners. In addition to this, lobbying attempts for certain calls might potentially be regarded as anticompetitive in some cases unless the ‘procedural defence’ discussed in Chap. 3 (Sect. 3.2.2) can be applied. The universities under scrutiny also do not seem to impose special duties, except, usually, a requirement to make results publicly accessible which, if regarded as anti-competitive at all, is likely to be exemptible considering that this is encouraged in EU policy such as the Research Framework. If other undertakings require universities to act in a way they do not wish to act, they may also be able to use competition law to their advantage. Public funding rules as well as universities providing advantages for certain undertakings or excluding certain undertakings from a collaboration, could potentially be regarded as anticompetitive behaviour or as state aid if in an area of economic activity. The procedures of IPR exploitation in the universities as such do not seem problematic from a competition law perspective. With regards to IPRs generated in collaborations, any economically unjustified limitations as to the use of generated IPRs could potentially fall under competition law. When it comes to IPR and state aid law, the conditions of para 28 of the Research Framework need to be adhered to in order to avoid state aid accusations. Problems with competition law could also occur, if universities divide workload along subject lines (some indication of which was found), if this amounts to an agreement or concerted practice in an area of an economic activity. Furthermore, if public calls are economic activities, they would need to be commissioned according to the relevant rules which in particular involves non-discrimination. Finally, special support for certain privately owned spin-offs or knowledge being transferred exclusively to one entity in an area of economic activity might potentially be regarded as state aid.

As in the other two countries, there might be exemption possibilities for potential infringements depending on the individual case. As regards Article 101(1) TFEU, especially the Technology Transfer, Research and Development and Specialisation BER may be useful, but there may also be exemption possibilities under Article 101(3) TFEU beyond this if there are efficiency gains. When it comes to state aid law, the sums provided for public research are higher than in England and thus there is more room for certain, potentially anti-competitive, public funding to fall outside the scope of the de minimis, GBER and SGEI legislation. As in the other two countries, it might also more generally be possible to exempt potential breaches of competition law as SGEIs under Article 106(2) TFEU. In this respect, as in the Netherlands, research is a statutory task, but the legislation establishing this might, in itself, not be precise enough to be regarded as an entrustment act. This might, however, be achieved by public grant agreements in some cases.

 
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