The Impact of EU Competition Law on National Healthcare Systems

Abstract

Whereas the EU’s internal market rules govern market access and public intervention, its competition rules are concerned with the market conduct of private parties. When do the competition rules apply to healthcare? In principle the scope for application of the competition rules to the healthcare sector is largely defined by the Member States themselves. This is because a key criterion is whether the entities concerned act as undertakings, that is offer goods or services in a market. In pursuit of efficiency the Member States tend to rely at least partly on private undertakings for the market based provision of healthcare. Some healthcare purchasers, such as insurers, can also be classified as undertakings. Hence in many cases the competition rules will apply. Given the relevance of the competition rules to healthcare, is there still room for the pursuit of public policy objectives? As this paper illustrates the competition rules (including the state aid rules) provide for boundaries and exceptions that Member States may rely upon to continue the pursuit of public policy goals in the healthcare sector. The most important exception is that for services of general economic interest (SGEI). This allows the pursuit of both economic (efficiency) and non-economic (equity) goals, albeit only in a proportionate manner. This requirement is likely to lead to a rationalisation of public policy objectives in the healthcare sector. What is the effect of EU competition law on healthcare at the level of the Member States? Cases studies of Germany, the UK and the Netherlands show that so far the impact of EU competition law is largely indirect and works through national competition law as well as sector-specific rules. Given the lack of political support for EU level harmonisation of healthcare regulation, at the same time EU competition law forms a default regulatory framework for the sector. Because in the Member States the reliance on markets in healthcare provision is still growing the impact of EU competition law on national healthcare systems is likely to increase as well.