The commercial nature of higher education institutions in The European Union

Abstract

In this dissertation it was shown that higher education is considered as a commercial activity in Europe. Indeed, the research that has been undertaken in the field of European law, more specifically on the European Convention on Human Rights and in European competition law, and in French law, with the French constitutional law and the French competition law, proving the commercial nature of higher education institutions.

However, the domain of higher education has a special status due to the fact that education is often seen as being part of the sovereign power of the Member States and as such, usually considered as being pa11 of the public service of each Member State. Regarding this particularity, public higher education institutions are often, de facto, rejected from the application of competition law as soon as the Member State considered that this institution was part of the public service.

As a result, in France, private higher education institutions are often subject to competition law and, on the contrary, public higher education institutions are systematically rejected from the field of competition law regarding their different nature and the notion of public service. Besides the unequal situation berween private and public higher education institutions in France, there is no exhaustive definition of the content of the public service of education. In consequence, the application of competition law seems to depend only on the discretionary power of the French state in that matter.

All higher education institutions are considered to be commercial by nature under European law but they don't get the same treatment depending on their public or private nature and on the discretionary power of the state.