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COMPETITION LAW, MERGER CONTROL AND ECONOMIC REGULATION IN THE DUTCH AND ENGLISH HEALTHCARE SECTORS – A COMPARATIVE DOCTRINAL APPROACH Mary Guy UEA Law.

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Presentation on theme: "COMPETITION LAW, MERGER CONTROL AND ECONOMIC REGULATION IN THE DUTCH AND ENGLISH HEALTHCARE SECTORS – A COMPARATIVE DOCTRINAL APPROACH Mary Guy UEA Law."— Presentation transcript:

1 COMPETITION LAW, MERGER CONTROL AND ECONOMIC REGULATION IN THE DUTCH AND ENGLISH HEALTHCARE SECTORS – A COMPARATIVE DOCTRINAL APPROACH Mary Guy UEA Law School / Centre for Competition Policy (CCP), University of East Anglia (UEA), Norwich. UK. 2014 Legal Research Methods and Methodologies Conference - “Celebrating Diversity, Sharing Insights” University of Bristol 16 September 2014 1/11

2 Overview 2/11 Doctrinal analysis: elements of research and associated methodologies: applying “economic” laws to a “social” sector… A healthcare structure – framework for analysis… Comparative analysis: the Netherlands and England – overview of differences and similarities… Comparative approaches to competition law, merger control and economic regulation…

3 Doctrinal approach… Starting-point: Health and Social Care Act 2012 (HSCA 2012) Part 3, Chapter 3 “Competition”… - CA98, EA02, Procurement, Patient Choice and Competition Regulations 2013. Concepts derived from research sources including statute, case law, regulatory guidance… - “undertaking”; - “enterprise”; - “patients’ interests”… Extrinsic considerations: social justice, economic theory, politics… 3/11

4 Competition and healthcare – Contextualisation, and/or an interdisciplinary approach? Links between law, economics and politics; - Efficiency/equity; state/market; competition law/SGEI; - Market definition problematic in healthcare… Applying general principles, and adapting these where necessary (Greer)… - Transposition of concepts developed in other sectors – e.g. significant market power (SMP), economic regulation… Not socio-legal research, nor “law-in-context”? - “Internal” / “External” within the confines of a doctrinal approach; - Competition lawyer looking at healthcare – health lawyer looking at competition; - Competition becoming recognised as a theme within health law in the Netherlands… 4/11

5 A healthcare structure - framework for analysis… 5/11

6 Comparing the Netherlands and England… an overview of differences and similarities Differences Similarities Civil / common law systems; Bismarck social insurance system / Beveridge taxation- funded NHS; Different models of competition (Enthoven)… Incorporating “healthcare values”: affordability, accessibility and quality, patient interests etc… Application of EU competition law… Influence of liberalising other sectors (utilities)… 6/11

7 Competition law – a comparative approach… harmonisation?… EU LevelState aid rules Abuse of dominance provisions Anticompetitive agreements provisions Van de Gronden – “Euro-national” competition rules in healthcare… National Level Services of General Economic Interest (SGEI) exception Significant Market Power (SMP) Patient interests as justification for anticompetitive behaviour... 7/11

8 Economic regulation – a comparative approach… Functional equivalence? Competition Authority Healthcare Regulator Quality Regulator 8/11 Institutions which fulfil similar functions in the two countries… Concurrent powers vs samenloop…

9 Merger control – a comparative approach… Similar means to achieve similar outcomes? 9/11 Problems with applying general merger control to hospital mergers -Only competition authority has competence to approve mergers; -Little, if any, scope to incorporate public (patient) interests; -Many hospital mergers would not be examined due to the high turnover thresholds attached to general merger control… Solutions: -The Netherlands: lower turnover thresholds, additional assessment criteria, “healthcare-specific” merger test… -England: NHS-specific test with lower turnover thresholds, post-HSCA 2012 role for regulator in identifying “relevant customer benefits”… Similarities in approach: -Consolidation of regulator input into merger assessment process in both countries…

10 Summary… Thesis comprises two elements: application of competition laws to the healthcare sector and comparison of the Netherlands and England… Doctrinal approach… - Statute as fundamental starting point, but need to incorporate extrinsic considerations… - Contextual considerations: healthcare markets, modifications of competition laws, closer cooperation between different groups of lawyers… Comparative approach… - Harmonisation and functional equivalence both relevant, but not the only considerations… 10/11

11 Questions? Thank you! 11/11

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