Taking the Temperature: A Survey of the EU Law on Competition and State Aid in the Healthcare Sector

35 Pages Posted: 5 Nov 2010 Last revised: 19 Apr 2011

Wolf Sauter

Tilburg Law and Economics Center (TILEC); Dutch Healthcare Authority; Tilburg Law School

Johan van de Gronden

Radboud University Nijmegen

Date Written: November 4, 2010

Abstract

As the healthcare sector grows in significance due to social and technical developments the EU competition rules are likely to be more frequently applied to healthcare both as a result of the broad interpretation of the concept of undertaking and because the applicable antitrust rules are since modernisation also applied at Member State level. At the same time there is so far little guidance regarding the manner in which the substantive rules must be applied. This problem is less serious concerning state aid where the beginnings of a framework exist, in particular in the form of the Altmark test and the services of general economic interest (SGEI) concept, and where enforcement remains largely centralised in the hands of the Commission. We plead for a broader application of SGEI and of the legitimate objective test that is found in Wouters and Meca-Medina. In particular we advocate providing guidance by means of a soft law approach within the European competition network (ECN).

Keywords: EU competition law, healthcare; healthcare and EU law, case law, Court of Justice, General Court, antitrust, merger control, state aid, services of general economic interest, SGEI, internal market

JEL Classification: I0, I1, K 21, K32, L4

Suggested Citation

Sauter, Wolf and van de Gronden, Johan, Taking the Temperature: A Survey of the EU Law on Competition and State Aid in the Healthcare Sector (November 4, 2010). TILEC Discussion Paper No. 2010-038; Tilburg Law School Research Paper No. 05/2011. Available at SSRN: https://ssrn.com/abstract=1702832 or http://dx.doi.org/10.2139/ssrn.1702832

Wolf Sauter (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Dutch Healthcare Authority ( email )

Postbus 3017
Utrecht, 3502 GA
Netherlands

Tilburg Law School

Tilburg, 5000 LE
Netherlands

Johan Van de Gronden

Radboud University Nijmegen ( email )

Nijmegen, 6500 HK
Netherlands

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