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Market Foreclosure

As in the other two countries (Sects. 5.3.4 and 5.4.4), no signs of market foreclosure could be detected for research in Germany.

Refusal to Enter into Contractual Relations and Preferred Partners

The interviewees stated that partners are usually found through relationships of the researchers and that it is also topic dependent (i.e. who works on the subject at all). Generally, the universities would not have particular preferred partners nor exclude certain entities as potential partners. Some interviewees talked about the knowledge transfer chain whereby a researcher has an invention, for which the university gets an IPR, which then turns into a business idea and a spin-off in the region, ideally even in their own cluster. This would then be supported by receiving a preferential start-up license. Once it has grown, it offers internship opportunities, part time jobs for students and later employs graduates and gives research contracts to the university. Such a regional focus appears to be something that is theoretically aspired towards. However, this ideal chain would, according to the interviewees, rarely occur in practice because all sides will look globally for the best partners, especially in cutting-edge areas. In a focus group the issue was raised as whether co-operation with two or more competitors would be possible. Although interviewees were themselves unsure, as they were yet to experience the situation, they assumed if a certain amount of secrecy was adhered to this should still be possible. However, this would need to be carefully considered with an eye to the public mission of the university to disseminate knowledge. The only situation interviewees described in which the choice of partners may be limited or certain partners (regional or SMEs) compulsory were collaborations receiving additional funding, since this may be required by the funding rules. The only influence the universities have in this respect is pre-call lobbying. An interviewee working on aspects of knowledge transfer stated that this, to a degree, influences their co-operations because they like to cooperate with partners with whom they will receive additional public funding since this makes co-operation more attractive for the private partners.

The universities do not generally appear to anti-competitively exclude partners. Limitations seem to only derive from the public funding rules which will be discussed below (Sect. 5.5.11). Public regulations might also potentially be regarded as anti-competitive if they are based on a recommendation by a committee of experts from within the sector, unless the experts acted independently from interested undertakings and suitable governmental review took place.[1] The lobbying of, or advice for, the government regarding which areas to have calls in might potentially be viewed critically in this respect. Whilst it might also appear somewhat controversial that many co-operations are apparently based on personal relationships, this would probably not constitute a competition law infringement if no other potential partners are excluded, no preferential conditions are provided and full costing is adhered to. As one interviewee reported, the actual extent of relationships is also partly tested through questionnaires in order to avoid the impression of corruption or collusion.

  • [1] See C-185/91 Reiff (Judgment of 17 November 1993, EU:C:1993:886) para 14 seq onthe question of when expert committees can be regarded as an anti-competitive collusionunder Article 101 TFEU. See also case C-35/99 Arduino (Judgment of 19 February 2002,EU:C:2002:97) para 34-37. For more see Chap. 3 Sect. 3.2.2 above.
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