Background

How EU competition policy relates to national healthcare activity and reforms is a question which has received much attention over the past couple of decades, alongside the development of EU health law and policy.

Much of the discussion focuses on whether some of the competition rules (prohibitions on anticompetitive agreements, abuse of dominance, and state aid) apply to healthcare at a national level. Early cases such as AOK Bundesverband (about German sickness funds) and FENIN (about purchasing activity in the Spanish healthcare system) appeared to create an inconsistency in which  healthcare providers appeared subject to competition law, but purchasing activities not. This lack of clarity has implications for the reach of EU competition policy and healthcare, and the Services of General Economic Interest (SGEI) exception mechanism.

In recent cases such as Dôvera (about Slovak health insurance) and Casa Regina Apostolorum (about private sector delivery of public hospital services in Italy), the Court of Justice of the EU (CJEU) has provided some clarity by reaffirming that EU competition law does not apply to the activities at issue in these cases. However, these cases may not resolve the questions about the future use of the SGEI mechanism.  

Law and Policy Developments

• Recent cases

European Commission and Slovak Republic v Dôvera zdravotná poistʼovňa, a.s., CJEU Judgment - 11/06/20  20.

Casa Regina Apostolorum della Pia Società delle Figlie di San Paolo v Commission, CJEU Judgment - 27/04/2023.

• European Commission policy documentation

COVID-19 State Aid Temporary Framework - March 2020. 

Evaluation of the State subsidy rules for health and social services of general economic interest (“SGEIs”) and of the SGEI de minimis Regulation - December 2022.

Key Insights

• Recent cases underscore the significance of Member States' competence regarding healthcare system organisation and national health policy design under Article 168(7) Treaty on the Functioning of the European Union (TFEU).

This appears to play more of a defining feature in applying competition law at EU level than previously thought.

• Some decisions taken under the COVID-19 State Aid Temporary Framework indicate that there may be scope to consider matters such as solidarity and other non-competition factors in competition assessments.

If taken further in future state aid cases, this may serve to refocus further the interaction between the application of the state aid rules and the SGEI exception mechanism.

Policy Implications and Recommendations

• EU-level "reach" into national healthcare systems may be less than concerns suggest, but "Euro-ambivalence" and misunderstandings about EU competition policy should not be underestimated.

The consistent findings of the Commission and EU courts across cases from AOK Bundesverband to Casa Regina Apostolorum indicate that evidence of direct EU level "reach" into national healthcare systems regarding competition and marketisation reforms may be less than concerns suggest. However, indirect effects may be evidenced by "Euro-ambivalence" in national parliament debates.

• Framings of "solidarity" at national and EU levels needs to be better understood to gain the optimal balance between EU and national competition policy, particularly recourse to the SGEI mechanism.

How the concept of "solidarity" is framed at both national and EU levels matters and may have significant implications for where and how (EU and national) competition law is applied. 

Following Casa Regina Apostolorum, it is clear that Member States may need to take lead in defining SGEI for this to be considered by the Commission (and EU courts) in assessing future competition claims. 

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