8 - EU competition law and health policy

Summary

Introduction

Competition law has been an essential tool in the establishment of the single European market (SEM) and the European Community. The EC Treaty reflects the Community's evolution from an economic organization with extensive competence to regulate the SEM. Social policy, on the other hand, reflects the diversity of Member States’ social systems and remains primarily the jurisdiction of national governments. EU policies reflect a balance between European welfare state principles of universal access to public services and social solidarity, and the competition law principles of market integration and economic freedom.

The enforcement of EC competition law by the European Court of Justice (ECJ) and national courts has been a significant driver pushing health policy onto the European Union agenda. Community competition rules prohibit undertakings from participating in anti-competitive activities, such as agreements to set prices or abuse of dominant position. Since the definition of an ‘undertaking’ focuses on the function of the organization rather than its status, it has been applied to both private and public health care services. Article 152(5) EC leaves health provision and financing squarely under the jurisdiction of Member States, as long as other EU laws, including competition rules, are followed.

Chapter 7 in this volume presented the context of this debate by analysing competition law and public services. This chapter will present specific cases where competition laws have been applied to the health sector, providing a basis for analysis of the current state of EU law and the indications for the road ahead. The most important Treaty provisions governing competition law are Articles 81, 82 and 86 EC, found in Section 1 of Title VI.