Health in Europe -  Dr Mary Guy (Lancaster)

Health in Europe - Dr Mary Guy (Lancaster)

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(Re)Locating Solidarity in European Healthcare - Insights from EU Competition Policy

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Solidarity is considered the “ideational point” upon which European Union (EU) Member State healthcare systems converge (Hervey 2011), and to have potential as a distinctly European principle of medical ethics (Frischhut and Werner-Felmayer 2020).

Within EU competition policy, solidarity can form the basis for both a total exemption from the antitrust and state aid rules in the logic that activities carried out would not be economic in nature. Judgments since the early 2000s, such as AOK Bundesverband and FENIN, have engaged with this and received varying degrees of critique, instituting distinctions between the applicability of EU competition policy to healthcare providers, but not healthcare purchasers. Solidarity can also form the basis for a partial exception to the antitrust and state aid rules via the Services of General Economic Interest (SGEI) mechanism under Article 106(2) Treaty on the Functioning of the European Union. Perhaps the most obvious example in the healthcare context is the designation of emergency ambulance services as SGEI while standard patient transport was subject to the competition rules in Ambulanz Glöckner.

The juxtaposition of solidarity and competition – implying an antithesis – becomes increasingly problematic in view of ongoing adherence to solidarity as a basis for European healthcare system organisation while many countries adopt marketisation reforms, or incorporate greater private sector roles. This can be seen more clearly in a ‘new generation’ of case law, such as the 2020 CJEU judgment in Dôvera and the 2021 General Court decision in Casa Regina Apostolorum and subsequent, current, appeal.

This paper builds on recent literature (Nikolić 2021, Morton 2021, van de Gronden and Guy 2021) to examine whether perceptions of solidarity in healthcare are changing at the level of EU competition policy to enable a greater flexibility in competition reforms developed at national level.

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