Education in Russia in the First Decade of the 21st Century - Sergey Shirin

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(in the form of retail sale), participating in particular partnership. However, here should be added other profitable secondary operations not associated directly with the production and selling of goods, works and services that are mentioned in the statute. This significantly extends the range of possible types of business activity.

      Educational institution may only engage in the type of business activity specifically stated in its charter. By this fact educational institutions significantly differ from other legal entities that have the right to carry out any activity not prohibited by the Federal Laws, unless it contradicts the object and purpose of the activities, stated in the Charter of legal entity.

      Educational institution is eligible to participate in the establishment of any commercial and non-profit organizations as a founder, shareholder, partner or co-investor (sharer).

      Along with the general (educational) activities, state or municipal educational institution may also provide additional paid services:

      * Supplementary education programs;

      * Special courses and cycles of disciplines;

      * Tutoring;

      * Advanced study;

      * Other services not stated in appropriate educational programs and state educational standards.

      These services can not replace the general educational activities funded from the respective budgets. Otherwise, the money earned through such activities, shall be withdrawn by the founder (by state and / or municipal authorities) to its budget.

      In addition, the founder or local government has a right to suspend business activity of educational institutions up to the court decision on this matter, as a lever that could restrain educational institutions managers’ enterprise, if it causes damage to the educational activities determined by the statute.

      As a general rule, income from any activity of state or municipal educational institution shall be used by it in accordance with the statutory objectives, i.e. for organization and provision of educational process.

      5. Is there any case-law on the applicability of competition law to activities of HEIs?

      Strictly speaking, there is. Although it probably should be a matter of the activity of education and HEI related authorities, not of the activity of HEIs themselves.

      Private HEIs, which are licensed by the Ministry of Education or – later – by Ministry of Education and Science, have the same rights as state-operated ones. Ministry occasionally issues acts that limit competition in higher education that impair the rights of private HEIs, in comparison, for example with Moscow State University. In such cases private institutions send the requirements to check such acts to Federal Antimonopoly Service (FAS). For example, in practice, as a result of the adoption of certain regulations which are issued by former Ministry of Education or the Ministry of Education and Science, it turns out that private educational institutions may participate in the competition for government grants and funds, but even if they win, they can not get budget money, because the Law “On Education” and the Budget Code contain certain amendments that do not allow to provide private institutions with such grants and funds. FAS responds to such appeals, explaining the contents of Article. 15 of the Law “On Protection of Competition”. This article prohibits to limiting competition in governmental, ministerial and departmental decisions.

      Such decisions are contained in the Protocol №4 of the Expert Council of the Federal Antimonopoly Service of Russian Federation on the development of competition in education and science dated 4 June 2007, Protocol №6 of the Expert Council of the Federal Antimonopoly Service of Russian Federation on the development of competition in education and science dated 29 April 2008. Amendments to the RF Law “On education” and the Federal Law “On Higher and Postgraduate Professional Education” based on these decisions were drafted and referred to the Ministry of Education and Science and the Ministry of Economic Development of Russian Federation for further joint elaboration and introduction to the Government of Russian Federation.

      In particular, with the help of FAS, they succeeded in liberalization of participation of private universities in the competition for state support of innovative universities in the framework of national project “Education”.

      6. Is competition law applicable on the competition for students?

      No, it is not. The RF Law “On Competition Protection” applies to relationships that concern the protection of competition, including the prevention and suppression of monopolistic activity and unfair competition, if Russia’s legal entities and foreign legal entities, federal bodies of executive power, bodies of state power of Subjects of Russian Federation, local authorities, other bodies exercising functions of those agencies or organizations, as well as state budget funds, the Central Bank of Russia, individuals, including individual entrepreneurs are involved in such relationships. However, individuals are subjected to this law, only when they do activities as business entities, to which students do not belong.

      Competition of university entrants is regulated by the Order of the Ministry of Education and Science that approves the procedure of admission to the HEIs and a number of federal laws that establish privileges for certain categories of citizens.

      7. Are state funded HEIs selling courses at market prices which are also provided by commercial educational institutions operating on the market?

      The average cost of education at the state universities is higher than in private ones. Brands of state universities were created, as a rule, in Soviet times, and, in recent years, administrations of the universities actively used these brands, regularly raising tuition fees. Private universities, as a rule, do not possess such resource as a recognizable brand name.

      8. Has there been case law on the extent of the activity of public interest of HEIs?

      In Russian legal system, social relations are not regulated by case law. Therefore sources of legal support of non-profit activities of educational institutions are not precedents, but the Constitution of Russian Federation (Article 43 and 44), Federal Laws “On education” and “On Higher and Postgraduate Professional Education”, Presidential Decrees that are settled to solving urgent problems of the system (“On urgent measures of state support for undergraduate and graduate students of higher educational institutions”, “On some measures to strengthen public support for science and higher education institutions”, “On some measures to strengthen state support of young scientists – the candidates of science, and their supervisors”, etc.), the RF Government Decrees (which approve such major acts as State educational standards for higher and professional education, Regulations on the licensing of educational activity, “Standard regulations on educational institution of higher professional education (on HEI) of Russian Federation”), Programs, Concepts and other documents of a conceptual nature (the priority national project “Education”, the Concept of modernization of Russian education until 2010, the Concept of State Youth Policy, etc.), departmental acts issued by the Ministry of Education and Science (“The procedure for admission to universities” and others), acts of Subjects of the Federation (the rules relating to higher education in the Law “On education” of the Republic of Adygea, Karelia, Tatarstan, Chuvashia, Stavropol region, Kurgan, Novgorod and Sverdlovsk regions, although the higher professional education in accordance with Article 24 of Federal Law “On Higher and Postgraduate Professional Education” is related to the jurisdiction of the Federation, not of its subjects), administrative agreements (between the Federation and its Subjects, between the federal executive authority and the education authorities of the Subjects of the Federation, between founder and university), acts of nongovernmental agencies of educational governing (All-Russia Union of Rectors, regional councils of rectors of universities, associations of universities, etc.), local acts taken by universities within the limits of their competences (statutes, regulations, orders of rectors, decisions of Academic

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