Edited by Paul Nihoul and Pieter Van Cleynenbreugel
Chapter 6: Healthcare systems and competition: challenges and boundaries for the application of competition law in the EU healthcare sector
It is undisputed that the principle of competition is applicable in the healthcare sector. This sector, however, comprises some of the most highly regulated areas: besides the pharmaceutical sector, which is characterised by strict market authorisation procedures for pharmaceutical products and cost control, health insurance companies, hospitals and care facilities, medical professions, medical practioners’ associations and pharmacies are highly regulated by national laws. In all Member States of the European Union (EU) national healthcare systems are an important economic sector, which is characterised by constantly increasing costs due to demographic change and longer life spans, increasing demand and technological progress due to new treatment options and pharmaceutical products that are generally protected by patents and data exclusivity. This chapter discusses the question when and to what extent competition rules apply to the healthcare system. It leaves the pharmaceutical sector aside and focuses on health insurances, hospitals and other care facilities as well as medical professions and medical practitioners´ associations as examples of regulated areas of healthcare that are influenced by public policy objectives such as the principle of solidarity and other social principles. The chapter addresses the following questions: Why is the importance of competition law increasing for healthcare markets? To what extent does competition law apply in the healthcare sector? Can public policy goals justify restrictions or distortion of competition? What characterises the relationship between competition law that is mainly driven by EU law and is substantially harmonised in the EU and the national healthcare laws of the Member States, which are not harmonised? Based on these questions the chapter begins with an overview of the health protection and the healthcare sector in the EU legal system and discusses the question why healthcare systems are under an increasing exposure to competition law. It then addresses the applicability of competition law in the healthcare sector by analysing the question whether entities in that sector are considered as undertakings in the sense of competition law. If competition law applies, the next question is whether there are restrictions of competition in the healthcare sector. Subsequently the relationship between competition law as harmonised EU law and the healthcare laws that are not harmonised national laws and embedded in the national legal system of the Member States are analysed. Finally, conclusions are drawn.
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