7 - EU competition law and public services

Summary

Introduction

The treatment of health care by European competition law encapsulates more clearly than almost any other public service a key dilemma: to what extent are public services subject to the norms of competition law and the internal market, or are they characterized by quite different principles of solidarity and citizenship, which make the application of market and competition principles inappropriate? As we shall see, neither the European courts nor the Commission has so far provided a completely clear set of answers to these questions, although important guidance recently has been apparent in case-law and Commission policy statements. In this chapter, I shall concentrate on the applicability of competition law to public services, and the extent to which they can be made subject to partial exemption from its rules because of their distinctive role. I shall only refer in passing to the law relating to state aids and public procurement; these are of crucial importance and are inextricably related to competition law, but are the subject of a separate chapter.

Markets and social solidarity

Of course, an important theme of European Union policy has been to create a single internal market characterized by open competition, and a major element in this has been the development of a system of competition law. The most important Treaty articles for this purpose are Articles 81 and 82 (there are also complex provisions dealing with mergers, but so far these have had limited importance in the health care field and so will not be covered in this chapter).