9 - Public procurement and state aid in national health care systems

Summary

Introduction

The recognition by the European Court of Justice (ECJ) that health care services are services within the meaning of the EC Treaty has very important legal implications, most of which are still to materialize. Free movement of patients, recognized in Kohll, Geraets-Smits and Peerbooms and their progeny, is just the tip of the iceberg. Much more crucial than accommodating the few thousands of ‘peripatetic’ patients moving from one state to another is the issue of financing high performing health care systems that have universal coverage.

Financing health care and securing universal coverage traditionally have been tasks attributed to the state. Indeed, even in ‘an era of contractualized governance in the delivery of public services’, where the ‘providential state’ gives way to the ‘regulatory state’ and where the containment of public spending is an absolute value, nobody in Europe seriously questions the need for the public funding of health care. However, once it is established that health care services are ‘services’ within the meaning of the Treaty and that there is a ‘market’ for health care, public money cannot reach this market in an arbitrary way. It has rightly been pointed out that ‘while in the 1990s the debate concerned anti-competitive practices and Article 82 EC … since the beginning of the current millennium, the main question has shifted to the means of financing public services and to state aid’.