Tentative Alignment of Research Policy and State Aid Law as a Way Forward?
This book has analysed the (potential) tension between national policies and EU law; notwithstanding the observed (Sect. 6.2), more recent, tendency of the Court to be slightly more lenient in areas of primary responsibility of the Member States. In particular, it has been observed that, when Member States start implement commodification policies, the economic provisions of EU law become more readily applicable and may lead to further commodification. Furthermore, it has been discussed (Chap. 2 Sect. 2.2) that the EU has limited competences in research and education and that therefore policies in this area seem to be additional and next to the national policies and other areas of EU (hard) law. In this regard the new Research Framework and GBER appear to be somewhat of an exception in that they are more aligned with EU research policy. This might be due to the fact that the EU has slightly broader competences in research policy after the Treaty of Lisbon. It may have also to do with the fact that a more market based approach in research is advocated in the EU’s own research policy and, therefore, it is felt that this needs to be taken into consideration to a greater extent when assessing if a certain conduct infringes the state aid rules. In the following we will have a brief look at this tentative alignment in these two instruments.
The new Research Framework (in para 2) makes an explicit connection to Article 179 seq TFEU and in para 3 to the Europe 2020 Strategy. It is remarked that the Europe 2020 Strategy identified ‘research and development (“R&D”) as a key driver for achieving the objectives of smart sustainable and inclusive growths’ and that it is further noted ‘that State aid policy can “actively and positively contribute ... by promoting and supporting initiatives for more innovative, efficient and greener technologies, while facilitating access to public support for investment, risk capital and funding for research and development”’. The Commission also explicitly made clear that redistributive Union research policy is to be regarded as lex specialis and thus does not need to be exempted from the state aid rules (para 9). The same is included in para 26 of the preamble of the GBER. As we have already observed (Chap. 3 Sect. 3.3.5), both instruments broaden the exemptions from the state aid rules. In particular, the exemption thresholds have doubled in the new GBER and it includes various new aid categories (e.g. process and organisational innovation aid, aid for innovation clusters and aid for research infrastructures). Further, it does not exclude ad hoc aid for large enterprises anymore and commercial revenues from prototypes no longer need to be offset with the aid. In addition, under both instruments prototypes might be classified as applied research rather than as experimental development, thereby allowing higher aid levels for prototype production. The new Research Framework is equally more generous than its predecessor, as it, for example, allows broader evidence for market failure and assumes fulfilment of certain conditions if the project is co-funded by the EU. Finally, unlike the old Research Framework, the new Research Framework has no expiry date, but can be reviewed by the Commission at any time for any justified reason (para 129) allowing the Commission more flexibility in changing and adapting the new framework.
This then leads to the question whether such an alignment as in these two instruments is indeed the way forward? While the new rules are providing more leeway to HEIs when it comes to exempting potential state aid in line with the aims of European research policy which advertises public-private cooperation and increasing innovation and exploitation of research results, this does not appear to necessarily have made things easier for HEIs. In particular, to delineate between economic and non-economic activities seems rather complex as has been discussed in detail in Chap. 3 (Sect. 184.108.40.206). While there was confusion, in this respect before, which might in fact have been clarified by the new Research Framework making clear that research services are economic in nature no matter as what they have been labelled, other areas (e.g. the new ancillary activities and knowledge transfer) still seem far from clear. Further, while it is helpful that the new Research Framework clearly states that economic research needs to be procured and provides more leeway in costing by allowing an at arm-length negotiated price covering marginal costs rather than insisting on full cost plus, the interpretation of the details of these rules are left to the HEIs. Especially the determination of when a negotiation can be seen as having been held at arms-length might in fact be more complicated than simply insisting on full-costs plus.
HEIs are required to make these assessments in order to decide whether they need to notify any financing they provide or receive. Despite the state being responsible for notifying aid in the latter case in the first instance, HEI should also have an interest therein as they are the ones who have to pay any unduly obtained aid back. As we have seen (Sect. 6.3 and Chap. 5 Sects. 5.3.1, 5.4.1 and 5.5.1 respectively), the awareness of competition law as a potential constraint for HEIs generally differs in different countries depending on the general governance systems employed and the new rules can lead to confusion here or may potentially even discourage HEIs from entering into a collaboration. The latter point had been addressed by the OFT (Office of Fair Trading, previous UK competition authority) who had, despite not having found sufficient evidence of actual anti-competitive behaviour (though the OFT had not investigated state aid), noticed fears and uncertainty about applicability of competition law and when a practice may be anti-competitive. This underlines what has been found in Chap. 5 (Sect. 5.3.1); namely that there appears to be little awareness/understanding for competition law in England and it may be assumed that England is not the only EU Member State where this is the case. Yet, especially with further commodification, such assessments may more frequently have to be made. To stay within the rules may also require further commodification (e.g. through procurement of more research services where commercial providers can participate).
In addition, it still seems a very fragmented approach to rely on individual pieces of secondary legislation. While, as Szyszczak observes, this tendency towards fragmentation of policy in areas of EU social law may be the only pragmatic way towards firming up a harder policy, it arguably lacks a coherent strategy when it comes to the applicability of EU law to HEIs. Furthermore, the approach is also questionable from a democratic perspective as currently the balancing seems to have been made entirely by the Commission, since the two pieces of secondary legislation discussed are a Commission Communication and a Commission Regulation. As regards the Research Framework, it has to be noted that a Commission Communication is obviously only soft law. However, that does not necessarily resolve the concerns. As §tefan explores Commission soft law can create perceived binding effects or even binding effects and is indeed more difficult to challenge in the Court. While the Commission did have a consultation pro- cedure, this is arguably an insufficient replacement for rule-making under a proper legislative procedure, in particular if one considers the various voices in and outside academia raising concerns against the current more economic tendencies in EU research and education policy as discussed above (Sect. 6.4). The present situation with legal constraint arising from directly applicable EU law discussed in Chaps. 2-5 as well as the limited attempts to align the EU research policy (which in itself promotes commodification) with directly applicable EU law reinforce these criticised commodification tendencies.
-  Such alignment with the Lisbon 2020 aims as well as consideration of the financial crisis hasalready been foreseen in the Mid-Term Review (European Commission 2011, pp. 1, 8). It hasalso been said that the Member States should be encouraged to utilize the exemptions providedin the Research Framework and the GBER further (ibid p. 7). Equally the Issue Paper envisagedalignment with Europe 2020 and Horizon 2020 declaring the intention ‘ensure that it [the newResearch Framework] sufficiently caters for the Europe 2020 objectives’ (European Commission2012, pp. 2, 6 seq).
-  Article 4(1)(j), (k) and (m) GBER.
-  This might have been due to the experiences during the long revision process. The ResearchFramework was due to expire on 31 December 2013, however, in Commission Communicationconcerning the prolongation of the application of the Community framework for State aid forresearch and development and innovation OJ  C 360/1 the Commission extended its applicability until 30 June 2014 to allow more time for revisions.
-  Suarez 2014.
-  Szyszczak 2013.
-  This also raises questions such as the relationship between various areas of social services andcoherency amongst them. Would, for example, university-funded healthcare research be treateddifferently from other forms of research and, as has been discussed, for example, with referenceto C-113/13 Spezzino (Chap. 3 Sect. 3.3.5) can developments in other areas, such as healthcare,always be applied to HEIs?
-  §tefan 2012 pp. 8, 15 seq, 24 seq, 232, 235.
-  On the limits of these procedures see §tefan 2012 p. 234.