Anti-competitive Research Co-operation
There did not seem to be any indication that research was begun at an unreasonably late stage which could be in breach of Article 101(1) TFEU, as discussed in Chap. 3 (Sect. 22.214.171.124).
The interviewees explained that in national (NWO, national infrastructure roadmap) and European (European Strategy Forum on Research Infrastructure) funding policy strong attempts are made not to duplicate expensive research equipment. Thus if such equipment already exists it is often not funded again in another university, unless there is a particular reason for it. The universities would also be discussing to share facilities beyond that; amongst each other as well as with the private sector (which also sometimes contributes to the equipment). Furthermore, an interviewee from a category 1 university explained that universities would be expected to give start-ups (not just their own) access to costly equipment as it would be too expensive for the start-ups to maintain this themselves. Specialisation would also occur, to some extent, mainly regarding patient care due to reimbursement issues, since health insurers determine what and where is acceptable treatment. From a competition law perspective, one might wonder if the placement of infrastructure into only one or a few universities could be regarded as anti-competitive if it involved areas of economic activity. Firstly, this might amount to state aid as it provided one institution with an advantage over others particularly if it can then charge others rent for use of the infrastructure. Secondly, it might place the organisation into a dominant position in a certain research market which it could abuse should it not provide (equal) access to the essential facility. If voluntary facility sharing between HEIs or between HEIs and other parties makes economic sense, no party is discriminatorily excluded from it and, if the equipment is co-financed, all parties receive reasonable economic rates when letting the infrastructure out, this would, however, probably not constitute anti-competitive behaviour. Access to equipment for start-ups would probably only amount to state aid if no adequate consideration was paid. Other areas of specialisation like the example of health insurers deciding about specialities in universities and university hospitals might cause constraints because it could be regarded as a vertical cartel.
While institutions need no accreditation to research and the research market, as such, is thus open, the public HEI market is widely foreclosed by government. Interviewees in a category 3 university described the difficulties their university had to establish itself as a university because the government was of the opinion that the public HEI market was sufficiently saturated and did not want a new public university to be established. This university was only able to be founded, because it argued that it was focussing on the international market rather than the local one and would have a different, problem-based teaching philosophy. The other interviewees confirmed that it is almost impossible to establish a new university and receive public funding. An interviewee in a northern university described how Friesland recently failed in its endeavour to establish a publicly funded university, despite having argued that they would cater only for the local market where need had apparently increased. The same would be true for new courses or research areas within a university. Indeed, all the interviewees pointed out that the government now expects universities to pick focus areas and to concentrate on them, which are then also supported through extra funding. Some interviewees were rather critical of that, as they saw their university as a comprehensive research university which carries a certain prestige. Attempts would thus be made to attract non-public funding in order to continue to excel in all areas. One interviewee mentioned that he believed it would make interdisciplinary research more complicated, if not every area was researched intensively in-house. Aside from these concerns, it also seems possible that, if and in so far as universities can be regarded as undertakings, these government policies would amount to market division and state aid for existing universities to the detriment of those trying to establish themselves or establish a new area. Interestingly, we have seen in Chap. 3 (Sect. 126.96.36.199) the reforms the current government in the UK is aiming to bring into place for England would make access for new providers easier (inter alia due to reports by the national competition authorities) which indicates how competition law can contribute to accelerate commodification. This may be something that could become equally relevant for the Netherlands in the future, especially if they move forwards on the path towards commodification of HEIs.
The universities would, according to some interviewees, also often collaborate more extensively with each other in an inner state region (Twente, Nijmegen, Groningen and Wageningen or Leiden, Delft and Rotterdam), across borders (Northern Netherlands and North Germany) or Europe wide (Gent, Groningen, Gottingen and Upsalla) in strategic partnerships. Particularly in these partnerships, but also beyond, according to one interviewee working on policy aspects, it is attempted not to double-up in research specialisation or duplicate equipment. Thus if one of the partners has a chair in a certain area the other partner would not employ a professor with the same speciality. This would enhance cooperation. Even if universities retained all subject areas, concentration would take place within specialities. Another interviewee described an internal research policy in his university which provides that they would not compete with local companies. Investment was therefore only supposed to go to such spin-offs and start-ups deriving from unique research in the university. In particular, infrastructure was not to be exploited if it would lead to competition with local companies. An example was also provided of a scheme between a universities, the local Hogeschool and one in a different location. In this scheme, the two HEIs in the first location would stick to one area of research, while the other HEI would investigate, together with private sector entities, whether the waste from the former could be utilised to make certain products. The former HEIs refrained from investigating what could be done with the waste. Depending on the exact details of the cases, (particularly on the question as to whether it is normal market behaviour to offer a slightly different product or if behaviour amounts to actual collusion) all these policy examples risk being regarded as infringing Article 101(1) TFEU, though there may be exemption possibilities, especially under the Specialisation BER, if they do not involve hardcore restrictions and stay within the market share thresholds.
-  Regulation 1218/2010/EU on the application of Article 101(3) of the Treaty on theFunctioning of the European Union to certain categories of specialisation agreements OJ L 335/43.