Competition questions over rule that restricts applications to Oxbridge

Oxford and Cambridge agreement could amount to breach of competition law, say experts

August 15, 2013

The rule that stops students from applying to both the universities of Oxford and Cambridge in the same year could amount to a breach of competition law by restricting consumer choice, experts have suggested.

The Ucas rule means that the two universities do not compete over the same students after applications have been submitted. No other UK institutions have such agreements with each other.

Speaking privately to Times Higher Education, several scholars of competition law said the rule could be challenged.

And they suggested that another Ucas rule – that of restricting prospective undergraduates to five choices of institution – could also be challenged under competition law.

Looking at the Oxbridge applications rule, Dennis Farrington, visiting fellow at the Oxford Centre for Higher Education Policy Studies and co-author of The Law of Higher Education, said that there “may be an element of uncompetitive practice here given the pre-eminence of those universities and their domination of the market”.

However, he added that he would “not like to stick my neck out and say this is definitely the case”.

Speaking generally, Christopher Townley, senior lecturer in international competition law and regulation at King’s College London, said that competition law “does have lots of implications in universities we haven’t thought through”.

He added that universities were likely to be subject to competition law in terms of applications, as this related to the buying and selling of services.

Competition law, as established in European Union statutes and incorporated into UK law, targets “undertakings” – defined as any entity engaged in an economic activity – a category more likely to cover universities since tuition fees rose and direct state funding fell.

Ucas, a limited company, could be affected by competition law as an “association of undertakings”. It has already cited competition law in withholding figures on institutions’ 2013 applications.

The key section of EU law prohibits “all agreements between undertakings, decisions by associations of undertakings and concerted practices…which have as their object or effect the prevention, restriction or distortion of competition”.

Dr Townley said that UK and EU laws both state that undertakings “mustn’t limit or control markets and…mustn’t interfere with markets or sources of supply”.

But he added that “anti-competitive procedures can sometimes have a defence”, especially where they benefit consumers by, for example, lowering the price or improving the quality of a service.

A University of Oxford spokesman said that trying to widen its pool of students while choosing between “exceptionally strong candidates” would be “made significantly more difficult if the rule of combination was removed and applications increased sharply”.

A University of Cambridge spokeswoman said: “The rule benefits students by accommodating the university’s holistic admissions selection process, which is central to our commitment to fair admissions and enables students from all backgrounds to demonstrate their potential.”

Both Oxford and Cambridge students’ unions gave strong support to the rule, saying it aided fair access.

A Ucas spokesman said that the Oxford-Cambridge applications arrangement “was put in place at their behest in the 1980s, when both were members of Ucca [the Universities Central Council on Admissions, which was later merged into Ucas]”.

The spokesman added that Ucas “considers that all of its practices, including those relating to admissions to Oxford and Cambridge, fully comply with all applicable laws, including competition law”.

john.morgan@tsleducation.com

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