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Conclusion: Higher Education Institutions in the EU Between Competition and Public Service

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Higher Education Institutions in the EU: Between Competition and Public Service

Part of the book series: Legal Issues of Services of General Interest ((LEGAL))

Abstract

The aim of this last chapter is to connect the results of the empirical study with the previous chapters thereby assessing how applying the EU’s economic constitution to HEIs may lead to unforeseen consequences including further commodification which could endanger the traditional non-economic mission of European HEIs. The constraints faced by the sector are then contextualised in the wider debate and some recent attempts by the Commission to align EU research policy with competition law are critically discussed. It is concluded that these attempts seem equally insufficient, as they do not necessarily clarify the legal position, are still fragmented, are decided upon entirely by the Commission and do not appear to necessarily reflect the views of the general public or stakeholders in HEIs. Therefore, an outlook is given of potential alternative strategies, as unlikely as their realisation in the current Eurosceptic climate may be, for a more coherent EU level policy on HEIs which moves away from the current tendency towards commodification and truly clarifies the legal position of HEIs under EU law.

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Notes

  1. 1.

    See also Ulnicane 2016, p. 229 seq.

  2. 2.

    Garben 2010.

  3. 3.

    C-147/03 Commission vs Austria (Judgment of 7 July 2005, EU:C:2005:427), C-65/03 Commission vs Belgium (Judgment of 1 July 2004, EU:C:2004:402).

  4. 4.

    However, in C-73/08 Bressol (Judgment of 13 April 2010, EU:C:2010:181) the Court accepted seemingly unrelated concerns about the health care system as a justification, while keeping its general approach towards free movement (i.e. equal treatment with regards to access and the possibility of differentiation as regards maintenance) intact. This was possible as in this case the free moving students were mainly studying medical subjects which, assuming they would return to their home states, could lead to a shortage of medical professionals. See further on citizenship and HEI policies Chap. 2 Sect. 2.3.1 and on Bressol Sect. 2.3.1.2 above.

  5. 5.

    Cases C-76/05 Schwarz (Judgment of 11 September 2007, EU:C:2007:492), C-281/06 Jundt (Judgment of 18 December 2007, EU:C:2007:816) and C-153/02 Neri (Judgment of 13 November 2003, EU:C:2003:614).

  6. 6.

    C-41/90 Höfner (Judgment of 23 April 1991, EU:C:1991:161) para 21.

  7. 7.

    Decision 2006/225/EC on the aid scheme implemented by Italy for the reform of the training institutions OJ [2006] L 81/13.

  8. 8.

    Commission Communication on the application of the European Union State aid rules to compensation granted for the provision of services of general economic interest OJ [2012] C 8/02.

  9. 9.

    Ibid para 28.

  10. 10.

    Commission Communication ‘Framework for State aid for research and development and innovation’ OJ [2014] C 198/01.

  11. 11.

    United States v. Brown Univ., No. 91-CV-3274.

  12. 12.

    C-280/00 Altmark (Judgment of 24 July 2003, EU:C:2003:415).

  13. 13.

    T-289/03 BUPA (Judgment of 12 February 2008, EU:T:2008:29), C-113/13 Spezzino (Judgment of 11 December 2014, EU:C:2014:2440), but potentially also cases like C-523/12 Dirextra (Judgment of 12 December 2013, EU:C:2013:831) in the area of free movement law.

  14. 14.

    Similar Hatzopolous 2009, p. 236 seq; Sauter 2015, p. 142 seq; Gideon and Sanchez Graells 2016, p. 42 seq, 53.

  15. 15.

    Decision 1982/2006/EC concerning the Seventh Framework Programme of the European Community for research, technological development and demonstration activities (2007–2013) OJ [2006] L 412/01.

  16. 16.

    The full costing element of the centrally introduced Transparent Approach to Costing (see Chap. 4 Sect. 4.2.2.4).

  17. 17.

    Community framework for state aid for research and development and innovation OJ [2006] C 323/01.

  18. 18.

    The Issue Paper (European Commission 2012) makes this particularly clear by pointing out that mere labelling of an activity as collaborative research does not necessarily make this non-economic in nature.

  19. 19.

    Chapter 3 Sects. 3.2.4.2 and 3.3.5.2 above.

  20. 20.

    E.g. European Commission 2012.

  21. 21.

    This has been remarked about competitors rather than the universities under scrutiny themselves.

  22. 22.

    The private sector partner could also pay for the entire collaboration or receive IPRs reflecting the work packages conducted by the private sectors partner.

  23. 23.

    Commission Regulation 651/2014/EU declaring certain categories of aid compatible with the internal market in application of Articles 107 and 108 of the Treaty (General Block Exemption Regulation) OJ [2014] L 187/1.

  24. 24.

    Commission Decision 2012/21/EU on the application of Article 106(2) of the Treaty on the Functioning of the European Union to State aid in the form of public service compensation granted to certain undertakings entrusted with the operation of services of general economic interest OJ [2012] L 7/3.

  25. 25.

    Commission Regulation 1407/2013/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid’ OJ [2013] L 352/1.

  26. 26.

    Regulation 360/2012/EU on the application of Articles 107 and 108 of the Treaty on the Functioning of the European Union to de minimis aid granted to undertakings providing services of general economic interest OJ [2012] L 114/12.

  27. 27.

    See, for example Article 4 of Decision 2012/21/EU. See also the secondary legislation referred to in Chap. 3 Sect. 3.3.5 text surrounding n 275–279.

  28. 28.

    This is exemplified by, for example, compliance in the form of beginnings to introduce full costing and separate accounting in Germany in line with the previous Research Framework despite this being difficult to be combined with public accounting in that country.

  29. 29.

    See, for example, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions ‘Research and innovation as sources of renewed growth’ COM/2014/0339 final. See also Chap. 2 Sect. 2.2. above. Similar also Garben 2012, pp. 6, 20 seq; Beech 2013; Ulnicane 2016, pp. 331, 334, 336 seq.

  30. 30.

    Enders 2007, p. 27 with further references, similar Holmwood et al. 2016 p. 26 seq.

  31. 31.

    Jansen 2010, p. 45 seq; similar Holmwood et al. 2016, p. 26 seq.

  32. 32.

    Albrecht 2009, p. 8 seq; Schubert and Schmoch 2010, p. 252 seq; similar Holmwood et al. 2016, p. 26 seq.

  33. 33.

    De Fraja 2011.

  34. 34.

    Ibid p. 4.

  35. 35.

    Ibid p. 4.

  36. 36.

    Beech 2013.

  37. 37.

    Leisyte et al. 2008. See with respect to the REF in England similar Holmwood et al. 2016, p. 31 seq.

  38. 38.

    Catcheside K, ‘The growing divide between academic, administrative and management staff’ guardian.co.uk (23 June 2011) http://www.theguardian.com/higher-education-network/higher-education-network-blog/2011/jun/23/ucu-sally-hunt-academic-admin-divide Accessed 11 July 2011.

  39. 39.

    Stern 2016, p. 34.

  40. 40.

    Weale S and Batty D (2016) Sexual harassment of students by university staff hidden by non-disclosure agreements. The Guardian, 26 August 2016 https://www.theguardian.com/education/2016/aug/26/sexual-harassment-of-students-by-university-staff-hidden-by-non-disclosure-agreements. Accessed 15 September 2016.

  41. 41.

    Thambisetty 2013.

  42. 42.

    Friedmann and Richter 2004.

  43. 43.

    For the exact definition used see ibid p. 52.

  44. 44.

    Lemmens and Dupont 2012.

  45. 45.

    See, for example, Coughlan S, ‘Is the student customer always right?’ BBC News (28 June 2011) http://www.bbc.co.uk/news/education-13942401 Accessed 11 July 2011.

  46. 46.

    OFT 2014; CMA 2015.

  47. 47.

    OFT 2014, p. 72 seq; CMA 2015 para 5.24 seq.

  48. 48.

    BIS 2015, p. 42 seq; BIS 2016b, p. 21 seq.

  49. 49.

    BIS 2016a, pp. 5, 31, 34, 39, as regards research see pp. 51, 53 seq. It is also interesting to note that, while responses could be sent by anybody, the focus groups do not seem to have included students or academics (ibid p. 4).

  50. 50.

    The White Paper seems to have largely taken over the proposals in the Green Paper (see BIS 2015, p. 42 seq; BIS 2016b, p. 21 seq).

  51. 51.

    BIS 2016b, p. 7 seq, 15, 23.

  52. 52.

    BIS 2016b, p. 40 seq.

  53. 53.

    Holmwood J (2016) HE White Paper plans place the market, not students, at the heart of the UK HE. THE, 20 May 2016 https://www.timeshighereducation.com/blog/he-white-paper-plans-place-market-not-students-heart-uk-he. Accessed 23 May 2016.

  54. 54.

    Holmwood et al. 2016, p. 22.

  55. 55.

    Boxall M (2016) Higher education white paper: the big changes. The Guardian, 16 May 2016 https://www.theguardian.com/higher-education-network/2016/may/16/higher-education-white-paper-the-big-changes. Accessed 23 May 2016, Holmwood (n 53), Holmwood et al. 2016.

  56. 56.

    Kamola and Noori 2014, p. 600 seq.

  57. 57.

    Vandenbroucke and Vanhercke 2014, pp. 9, 11, 22, 102.

  58. 58.

    The national competition authorities appear to have considered the situation generally under competition law not making a specific difference between national and EU law since they essential prohibit the same kind of practices (anticompetitive collusion and unilateral conduct) and national competition authorities are also responsible for the enforcement of EU competition law as we have seen in Chap. 3 Sect. 3.3.2 above.

  59. 59.

    Kamola and Noori 2014, p. 599.

  60. 60.

    UCU (2016) Fighting privatisation in tertiary education. https://www.ucu.org.uk/stopprivatisation. Accessed 11 March 2016.

  61. 61.

    However, this may not be a clear cut approach, since it is goes alongside discussions to limit the number of non-EU (possibly in the future non-UK) students admitted to UK universities.

  62. 62.

    Such alignment with the Lisbon 2020 aims as well as consideration of the financial crisis has already been foreseen in the Mid-Term Review (European Commission 2011, pp. 1, 8). It has also been said that the Member States should be encouraged to utilize the exemptions provided in the Research Framework and the GBER further (ibid p. 7). Equally the Issue Paper envisaged alignment with Europe 2020 and Horizon 2020 declaring the intention ‘ensure that it [the new Research Framework] sufficiently caters for the Europe 2020 objectives’ (European Commission 2012, pp. 2, 6 seq).

  63. 63.

    Article 4(1)(j), (k) and (m) GBER.

  64. 64.

    This might have been due to the experiences during the long revision process. The Research Framework was due to expire on 31 December 2013, however, in Commission Communication concerning the prolongation of the application of the Community framework for State aid for research and development and innovation OJ [2013] C 360/1 the Commission extended its applicability until 30 June 2014 to allow more time for revisions.

  65. 65.

    Suarez 2014.

  66. 66.

    Szyszczak 2013.

  67. 67.

    This also raises questions such as the relationship between various areas of social services and coherency amongst them. Would, for example, university-funded healthcare research be treated differently from other forms of research and, as has been discussed, for example, with reference to C-113/13 Spezzino (Chap. 3 Sect. 3.3.5) can developments in other areas, such as healthcare, always be applied to HEIs?

  68. 68.

    Ştefan 2012 pp. 8, 15 seq, 24 seq, 232, 235.

  69. 69.

    On the limits of these procedures see Ştefan 2012 p. 234.

  70. 70.

    Schiek 2012, in particular Chapters 1 (pp. 13–52) and 5 (p. 216 seq). Similar Vandenbroucke and Vanhercke 2014, p. 7.

  71. 71.

    Schiek 2012, p. 213. Sauter equally finds that the ‘mixed economic constitution’ favours the market, but believes that there are sufficient exemptions (Sauter 2015, pp. 35, 222, 224).

  72. 72.

    Schiek 2012, p. 242; Schiek 2013.

  73. 73.

    Similar Garben 2012. See also Prosser 2005, who generally points to the problem of hard law integration in more economic areas (competition law) versus soft law integration in the area of public services.

  74. 74.

    Commission attempts to align different policies in secondary legislation have also been criticised in other area as creating incoherent results. See, for example, Sauter’s criticism of the Broadband Guidelines (Sauter 2015, p. 151 seq).

  75. 75.

    ECI ‘Water and sanitation are a human right! Water is a public good, not a commodity!’ Commission registration number: ECI(2012)000003. More information available on http://ec.europa.eu/citizens-initiative/public/initiatives/successful/details/2012/000003. The Commission has since answered to the ECI in a Communication (Communication from the Commission on the European Citizens’ Initiative “Water and sanitation are a human right! Water is a public good, not a commodity!” COM(2014) 177 final), but aside from a consultation on the Drinking Water Directive (Directive 2000/60/EC ‘establishing a framework for Community action in the field of water policy’ OJ [2000] L 327/1) the Commission does not appear to be planning much concrete action. This has been criticised by the European Parliament which approved a report requesting the Commission to do more than just reiterating existing commitments; in particular to exclude water and sanitation services from trade agreements (see European Parliament (2015) Right2water citizens’ initiative: Commission must act, say MEPs. Press Service, http://www.europarl.europa.eu/news/en/news-room/20150903IPR91525/right2water-citizens%E2%80%99-initiative-commission-must-act-say-meps, Accessed 26 August 2016). The limited results of successful ECIs and the complicated process have also led to the European Parliament requesting a reform of the ECI which, however, seems to equally be stalled by the Commission (The ECI Campaign (2016) Commission Unlikely to Revise ECI Regulation This Year. http://www.citizens-initiative.eu/commission-unlikely-to-revise-eci-regulation-this-year/. Accessed 11 April 2016).

  76. 76.

    ECI ‘Do not count education spending as part of the deficit! Education is an investment!’ Commission registration number: ECI(2013)000006. More information available on http://ec.europa.eu/citizens-initiative/public/initiatives/obsolete/details/2013/000006.

  77. 77.

    Zeit Online (2013) Landtag beschließt Ende der Studiengebühren in Bayern (English translation: State Parliament decides the end of tuition fees in Bavaria). Zeit Online, 24 April 2013 http://www.zeit.de/studium/hochschule/2013-04/studiengebuehren-bayern-abschaffung. Accessed 1 September 2015. See also Holmwood et al. 2016, p. 4 with regards to results from a national survey showing discontent of civil society with the UK government’s commodification policies.

  78. 78.

    On the negative attitudes towards the EU since the finical crisis see also Vandenbroucke and Vanhercke 2014, p. 7. Sauter equally expresses some doubt that social integration generally can catch up with economic integration due to insufficient will of the Member States and public opinion (Sauter 2015 pp. 34, 230).

  79. 79.

    Swennen 2008/2009, p. 279.

  80. 80.

    Similar to T-289/03 BUPA (Judgment of 12 February 2008, EU:T:2008:29) and the US case United States v. Brown Univ. discussed on in Chap. 3 Sect. 3.3.2.1 above.

  81. 81.

    Schiek 2013 in particular p. 85 seq. Similar Vandenbroucke and Vanhercke 2014, p. 14 seq.

  82. 82.

    Vandenbroucke and Vanhercke 2014, pp. 16, 22.

  83. 83.

    Beyond these two mechanisms nation states are arguably generally ‘vulnerable to economic globalisation’ (Schiek 2013, p. 85).

  84. 84.

    Garben 2011, p. 184 seq; Garben 2012, p. 24 seq.

  85. 85.

    Schiek 2013, p. 81 seq; Sauter 2015 pp. 27, 177 seq, 222, 241.

  86. 86.

    As mentioned above, the new Research Framework and the GBER have in fact treated EU funding policy as such by explicitly declaring that EU funding is excluded from the state aid rules.

  87. 87.

    Schiek (2013 in particular p. 76 seq) submits that the ‘constitution of social governance’ and especially Article 2 TEU can be interpreted as an acknowledgement for societal activity. She thus argues that this should play a role when the Court interprets exemptions and rules on area where such societal activity has taken place. It may also be conceivable that this could strengthen the argument that civil society’s wishes should be further regarded in law making, especially when they have already widely been expressed through citizen initiatives at various governance levels as is the case as regards commodification of HEIs. See also Vandenbroucke and Vanhercke 2014, p. 23 who equally argue that social integration should not take place ‘top-down’.

  88. 88.

    See, for example, the different reactions to the water ECI mentioned in n 75 above.

  89. 89.

    Indeed, Ulnicane reports that HEIs in many countries ‘are expected to supplement decreasing national funding with EU funding’ despite the latter being unfit for this purpose and that in ‘its first year, Horizon 2020 experienced a “tsunami of proposals” and low success rates leading to questions [if it] […] is destined to be an underfunded and oversubscribed programme’ (Ulnicane 2016, p. 336).

  90. 90.

    Ulnicane 2016, pp. 330, 332, 335.

  91. 91.

    Vandenbroucke and Vanhercke 2014, pp. 9, 11, 22.

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  1. Liverpool Law School, University of Liverpool, Liverpool, UK

    Andrea Gideon

  2. Centre for Law and Business, National University of Singapore, Singapore, Singapore

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Gideon, A. (2017). Conclusion: Higher Education Institutions in the EU Between Competition and Public Service. In: Higher Education Institutions in the EU: Between Competition and Public Service. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-168-5_6

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