EU Competition Policy and Healthcare: starter questions for future directions

EUhealthgov |

EUHealthGov started 2022 with its third quarterly seminar on 12th January – a roundtable on EU competition policy in healthcare which aimed to identify future directions in light of the 2020 CJEU Dôvera judgment regarding private and state health insurance in Slovakia, and the Casa Regina Apostolorum case (currently on appeal to the CJEU) concerning state subsidy of certain Italian hospitals. We were delighted to be joined by a range of experts from across Europe to consider how these challenges to the state aid rules may give the EU courts scope to clarify or reaffirm earlier approaches as private sector delivery of healthcare becomes more widespread in European healthcare systems.

Dr Mary Guy (Lancaster) introduced the discussions by setting out the approaches taken in previous cases and how the EU competition law framework in healthcare cases indicates a distinction between healthcare purchasing and providing activities. Conceptions of competition and solidarity have also characterised case law to date with distinctions which may prove less sustainable as more Member States experiment with expanding private sector delivery of healthcare. While responses to the Covid-19 pandemic have affected the application particularly of the state aid rules, the wider competition law framework in healthcare cases continues to develop along established lines.

Professor Johan van de Gronden (Radboud University Nijmegen) discussed the Commission and General Court’s findings in Casa Regina Apostolorum to outline distinctions between social insurance-based and taxation-funded healthcare systems. These seem to indicate that the latter has more room for manoeuvre under EU competition policy than the former, prompting the question of whether the trigger of an economic activity can be reconceptualised to be neutral to the design of Member State healthcare systems, or to refocus attention on the extent of public financing of healthcare.

Dr Bruno Nikolić (Ljubljana University) considered how Casa Regina Apostolorum fit with analyses in earlier case law, highlighting the inconsistency of referencing social health insurance cases when assessing the nature of health service providers under EU competition policy. This seems to prompt ongoing questions about the dividing line between economic and non-economic activities in health, and why we would (in general) exclude health services provided in public healthcare systems from EU competition policy.

Dr Marc Wiggers (Loyens Loeff Amsterdam) compared and contrasted approaches taken by the EU institutions Dôvera with the Dutch state aid case which accompanied the 2006 competition reforms in Dutch healthcare with the move from state sickness funds to private health insurance. By setting out an examination framework comprising social objectives, solidarity, the scope for profit-making and state supervision, it is possible to see how distinctions between profit and solidarity may emerge between the EU and national levels.

We look forward to developing this conversation in the future!

A recording of the event is available here.