Introducing Competition Principles Into Health Care Through EU Law And Policy: A Case Study of the Netherlands

Abstract

A national health care service is one of the central pillars of the welfare state in Europe. Recent moves to modernise health care, alongside introducing efficiencies through competition have resulted in experimentation and a re-organisation of national health care systems. The experimental nature of the reforms has brought health care into the focus, but uncertain territory, of EU economic law, especially competition law. Added to these pressures, the new EU fiscal measures oblige Member States to avoid excessive budgets and macro-economic imbalances. One constraint on an EU-based system of competition in health care is the effect of decentralisation, resulting in variations at the national level. Thus a case study is taken of the experience in The Netherlands. From this case study, we argue that a new form of Euro-national competition law is emerging for the health care sector with national authorities taking the lead in shaping the contours of this law.

The History and Scope of EU Health Law and Policy

“…Thus, although both the Netherlands and England have recently instituted reforms thought to trigger application of the competition rules, how these are being applied varies considerably, in part due to there being greater scope for competition in a Bismarck rather than a Beveridge system. 81 The resulting scope for potential legal uncertainty has been described in terms of emerging 'Euro-national competition rules', 82 as distinct from a process of 'spontaneous harmonization' as Member States experiment with varying degrees of private provision and competition in their healthcare systems.…”

Public healthcare interests require strict competition enforcement

“…In Home Care Kennemerland, the Rotterdam district court held that "strong indications" showed that the institutions did not compete within the relevant market that comprised both working areas [33]. Legal commentators have welcomed both judgments since they would (merely, EL) urge ACM to more carefully examine the factual and legal context when examining competition cases in healthcare [34][35][36]. Obviously, careful contextual analysis is a prequisite for good decision-making.…”

The role of EU competition law in health care and the ‘undertaking’ concept

“…However, this degree of freedom has long been deemed circumscribed: market-based reforms may have the unintended consequence of triggering the applicability of EU competition law (Prosser, 2010). At EU level, the possibility of divergent interpretations by National Competition Authorities raises concerns about consistency at EU level, potentially creating "Euro-national competition rules for healthcare" (van de Gronden, 2011; van de Gronden and Szyszczak, 2014). The need for direction and guidance to be set at EU level is also important because we know that England (UK) and the Netherlands -the two Member States to engage most actively with competition reforms of their healthcare systems -have created regimes which are heavily influenced by, and even borrow terminology from, EU competition law (Guy, 2019).…”