In her guest lecture Mary Guy (Lancaster University) will speak about the interplay between the EU competition law framework and competition reforms of national healthcare systems in EU member states and will discuss the nature and role of Article 168(7) TFEU in this context.
Article 168(7) TFEU has been described as a “subsidiarity clause for healthcare” for circumscribing EU-level intervention in Member States’ responsibilities regarding the organisation and delivery of health services. While Article 168(7) TFEU suggests that Member States are free to experiment with competition reforms to varying degrees (Andreangeli 2016), expanded public/private delivery of healthcare services is likely to trigger application of EU competition rules.
The EU competition law framework which has emerged thus far from cases such as Ambulanz Glöckner, AOK Bundesverband and FENIN, has influenced competition reforms at a national level (Guy 2019) and led to suggestions that EU-level intervention is at least desirable to avoid divergent interpretations of EU competition law (Van de Gronden and Szyszczak 2014).
EU-level influence and intervention regarding competition reforms of national healthcare systems may now be expanding via the fiscal control mechanisms of the European Semester, specifically the Country-Specific Recommendations (CSRs), and it is increasingly established that healthcare-related CSRs are influential (Azzopardi-Muscat et al. 2015, DGSANTE 2019). The CSRs have prompted Member States, inter alia, to remove restrictions on healthcare professions (France 2015) and increase competition (Italy 2016). The fundamental tension between solidarity and competition associated with national healthcare reforms has also been reflected in CSRs to improve cost-effectiveness and equal access (Finland 2018).
This paper is written in the context of the British Academy-funded project, “EU Health Law and Policy – Shaping a Future Research Agenda”, and employs an interdisciplinary (law/political science) approach to examine possible limits of Article 168(7) TFEU by reference to the development of competition reforms in healthcare. This lens reflects possible wider movement in EU focus between completion of the internal market and fiscal policy, considered to represent two “faces” of EU health policy (Greer 2013). It is also useful for examining how the EU may seek to ensure better implementation of EU policies at national level, and the extent to which EU fiscal policy may influence national healthcare reform.
At least two important considerations emerge. Firstly, that the Member States receiving CSRs may be less “free” under Article 168(7) TFEU to experiment with healthcare system reform than those which do not. Secondly, that Member State-level insights may result in a more coherent EU-level approach to competition in healthcare.
Mary Guy is Lecturer in Law at Lancaster Law School (UK), and between January and April 2020 she is a visiting researcher at Kent Brussels School of International Studies, Amsterdam Centre for European Law & Governance (ACELG) and Maastricht University.
Her doctoral research (UEA Law School / Centre for Competition Policy) examined competition reforms in Dutch and English healthcare and has been published as the monograph, Competition Policy in Healthcare – Frontiers in Insurance-Based and Taxation-Funded Systems (Intersentia 2019). She was invited to present this work at the Netherlands Authority for Consumers and Markets (ACM), the Dutch Healthcare Autority (NZa), the Expert Group on Competition at the Raad voor de Rechtspraak, as well as discussions with NHS Improvement and the Competition and Markets Authority, in addition to academic audiences at the European University Institute (EUI), Tilburg Law and Economics Center (TILEC), the London School of Economics (LSE), Sheffield and Liverpool. She is currently writing on ongoing review and reform of the English reforms (the NHS Long Term Plan Bill) and ongoing reforms in the Netherlands.
Beyond competition and marketisation reforms in national healthcare systems, her research interests include EU health law and policy. She runs the British Academy-funded interdisciplinary (law/political science) project, “EU health law and policy – shaping a future research agenda” with Dr Eleanor Brooks (Edinburgh). This project comprised an innovative World Café workshop at Lancaster University, and a workshop at the University of Edinburgh, leading to a project-themed special issue of Health Economics, Policy and Law (forthcoming 2020).
Her other publications include an examination of the interaction between the English National Health Service and private healthcare sector (Legal Studies 2019). In addition, she has written with Professor Johan van de Gronden (Radboud University Nijmegen) on new interpretations of the “undertaking” concept in a healthcare context (forthcoming 2020), with Jos Boertjens (NZa) regarding legal perspectives on insurance-based and taxation-funded systems (2019), and with Professor Wolf Sauter (ACM) on the history and scope of EU health law and policy (2017).