Andrea Gideon

Higher Education Institutions and EU Competition Law

The European Union does not (yet) use the supranational method of integration in higher education and research. Instead, Member States have agreed on soft law mechanisms (Open Method of Coordination ‘OMC’ as part of the Lisbon Strategy) and extra-EU law modes (the Bologna Process). However, higher education institutions (HEIs) are not immune to the forces of directly applicable Treaty provisions, such as those on Union Citizenship, the free movement provisions and the provisions on competition law and state aid. The fact that the application of EU law can interfere with national policy concepts as regards HEIs has already been highlighted by recent cases in the field of Union Citizenship. As regards the free movement provisions, competition and state aid law, higher education and research in public institutions in the public interest were originally regarded as non-economic services rendering these provisions inapplicable. However, this is not a fixed concept; with increasing commodification of HEIs their activities can come into the ambit of these provisions and tensions could arise. Commodification is a topic discussed increasingly not only in academic literature, but also in the wider public sphere. The Browne Report and the creation of a consumer market for higher education in England was only the latest step in this direction. This paper gives insights into the competition law aspects of this developing area.

Services of general interest provision through the third sector under EU competition law constraints: The example of organising healthcare in England, Wales and the Netherlands

It is commonplace that directly applicable eu treaty law exerts influence on various social fields at national level, including healthcare. There has been ample debate about the impact of free movement rights and public healthcare systems, recently complemented by an analysis of the relationship between public healthcare and eu competition law. This case study aims to highlight a different aspect of the tensions between social and economic dimensions of european integration. By providing healthcare as a service of general interest, some member states have taken recourse to the ‘third sector’, consisting of not-for-profit organisations offering social services based on a specific ethos. At the same time, a need to respond to ever diversifying social demands has developed. Co-operating with not-for-profit organisations as service providers as well as including them in the process of conceptualising services may be one way to respond to this. Such inclusion can be perceived as enhancing social integration through active civil society participation – a strategy which may also be suitable to enhance social dimensions of european integration.

Outsmarting the gig-economy through collective bargaining – EU competition law as a barrier to smart cities?

ABSTRACT In August 2016, drivers delivering meals in London after being booked via the platforms ‘deliveroo’ and ‘UberEATS’ made headlines by challenging working practices in the gig-economy through collective industrial action. Dissatisfaction resulted from extremely low levels of pay as well as a new payment calculation system being introduced without consultation. This indicates that the ‘gig-economy’, though arguably contributing to ‘smart cities’, may not always constitute the smartest solution for those serving within it. However, it also highlights that collective industrial action is far from structurally impossible for workers in the ‘gig-economy’, even though management of labour relies on anonymous and automated micro-management through internet platforms and apps. Indeed, collective organisation may seem the smartest solution for upgrading the gig-economy for its workers. This article develops an original contribution to the interface of smart technology in the gig-economy, collective labour rights, and EU competition law. We identify that EU competition law as interpreted by the Court of Justice would hinder collective organisation of those serving the gig-economy and develop a comprehensive re interpretation which allows adaptation of EU competition law to smart employment markets.

The Structure of Research Funding in Germany, the Netherlands and England (UK)

This chapter examines the research systems of England (UK), the Netherlands and Germany from a competition law perspective; thereby conducting the groundwork for the empirical study in Chap. 5. Each country is explored in a separate subchapter discussing the general funding streams and research conducting entities before focussing more specifically on research in HEIs. The systems investigated differ in a variety of ways from the general national expenditure on research and the overall character of the systems to the importance of individual sectors and the extent to which the recent trend of commodification has influenced the research systems. As regards research in HEIs, the importance of competitive factors in funding allocation has increased in all three systems, but it plays by far the most significant role in England where competitive factors even play a major role in generic research funding allocation. The growing importance in non-generic funding is associated with a variety of concerns, most significantly with threats to academic freedom and budget constraints due to matching requirements as non-generic funding is not always provided at full cost levels. The country specific subchapters will be followed by a tentative competition law analysis. It will be shown that differentiation between non-economic research, which does not fall under competition law, and research services, which do, is more difficult than it may appear, since this line can be fluid. However, the more economically oriented the system, the more frequently this may happen. If an activity does fall under competition law, potential tensions in all three systems could arise from this with national research policies on HEIs.

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

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.

The Position of Higher Education Institutions in EU Policy and Law

The aim of this chapter is to provide an overview of the position of HEIs in European policy (the EU and beyond) and to discuss potential spill-over from directly applicable EU law. It will be shown that the EU hard law framework contains limited competences in devising policies regarding HEIs. Instead, policy is often made through soft law at the EU and European (beyond EU) level. Nevertheless, other provisions of EU law, such as Union citizenship, the free movement provisions and competition law, can, and already have, spilled over into the HEI sector influencing national policy concepts. Ongoing commodification could increase this effect, thereby endangering the traditional non-economic mission of European HEIs.

Introduction: An Interdisciplinary Analysis of the Mission of European Higher Education Institutions and Potential External Constraints

The aim of this book is to provide an in-depth appreciation of the impact of EU law and policy on the Member States’ higher education institution (HEI) sectors with a particular emphasis on the exposure of research in universities to EU competition law. This introductory chapter delineates the topic, research questions, methods and outline of the book. It then proceeds to explore the historical and theoretical background for studying EU law constraints on HEIs. It will be shown how HEIs moved away from their traditional mission to become more economic in nature. Employing approaches from European integration theory, it will be seen that this can increase the likelihood of potential spill-over from the (economic) provisions of EU law potentially requiring further commodification of HEI activity.

Competition in the Healthcare Sector in Singapore - An Explorative Case Study

Market mechanisms have increasingly been introduced into the public service regimes of many countries over recent decades. This was meant to foster competition and choice which in turn was thought to increase quality while decreasing prices. Such progressive liberalisation led to public services increasingly falling within the ambit of competition laws which in turn partly required further liberalisation in some competition law regimes. However, there are certain tensions between providing such services in a competitive market and, at the same time, allowing them to retain their public interest character including such elements as universal provision, trust based relationships or equality of access. The ASEAN countries, in which competition law is still a relatively new area of law, might face such tensions with increasing application of competition law to these areas. Yet, the application of competition law to public services in ASEAN countries has thus far received virtually no attention.The explorative case study ‘Competition in the healthcare sector in Singapore’ aims to make a first step in filling this gap in the research by exploring the healthcare sector in Singapore from a competition law perspective. It will leave to one side questions on medical research, pharma firms’ interaction with the market and primary care. Instead it focuses its analysis on hospital care; more specifically on in-patient care (i.e. mainly secondary care). The research will explore in how far the notion of undertaking is applicable to hospital in-patient services in Singapore. Since the notion of undertaking in Singaporean competition law has received hardly any attention so far this is of relevance beyond the case study. It will then proceed to analyse in how far there might be potential issues with competition law application (s 34, 47 and 54 of the Competition Act) and if there would be recommendations beyond the legal analysis.

Services of general interest provision through the third sector under EU competition law constraints

It is commonplace that directly applicable eu treaty law exerts influence on various social fields at national level, including healthcare. There has been ample debate about the impact of free movement rights and public healthcare systems, recently complemented by an analysis of the relationship between public healthcare and eu competition law. This case study aims to highlight a different aspect of the tensions between social and economic dimensions of european integration. By providing healthcare as a service of general interest, some member states have taken recourse to the ‘third sector’, consisting of not-for-profit organisations offering social services based on a specific ethos. At the same time, a need to respond to ever diversifying social demands has developed. Co-operating with not-for-profit organisations as service providers as well as including them in the process of conceptualising services may be one way to respond to this. Such inclusion can be perceived as enhancing social integration through active civil society participation – a strategy which may also be suitable to enhance social dimensions of european integration.

European Economic and Social Constitutionalism after the Treaty of Lisbon: Services of general interest provision through the third sector under EU competition law constraints

It is commonplace that directly applicable eu treaty law exerts influence on various social fields at national level, including healthcare. There has been ample debate about the impact of free movement rights and public healthcare systems, recently complemented by an analysis of the relationship between public healthcare and eu competition law. This case study aims to highlight a different aspect of the tensions between social and economic dimensions of european integration. By providing healthcare as a service of general interest, some member states have taken recourse to the ‘third sector’, consisting of not-for-profit organisations offering social services based on a specific ethos. At the same time, a need to respond to ever diversifying social demands has developed. Co-operating with not-for-profit organisations as service providers as well as including them in the process of conceptualising services may be one way to respond to this. Such inclusion can be perceived as enhancing social integration through active civil society participation – a strategy which may also be suitable to enhance social dimensions of european integration.