EU competition law governs trading market structures and behaviour in order to uphold 'fair play' within the EU's internal market. It regulates anti-competitive behaviours that affect trade within the EU. The application of EU competition policy is a very complex area characterised by legal uncertainty. This makes it difficult to give definitive advice on how competition law affects the NHS.
European legislation states that competition law applies to 'undertakings', which are classed as any entity engaged in an economic activity regardless of its legal status or the way it is financed.
However, a distinction is drawn when an organisation is fulfilling a purely social function, its activity is based on the principle of solidarity and it is non-profit making. In this case, the organisation is not considered to be an undertaking and therefore is not subject to EU competition rules.
Whilst the majority of NHS activity could be considered to meet the test of fulfilling a social function on the basis of solidarity and not-for-profit, as the NHS develops the way it delivers healthcare to incorporate patient choice and a wider role for independent healthcare providers the extent to which it could be challenged under EU competition rules becomes less clear.
The NHS European Office's briefing reviews the legal framework, including relevant decisions of the European courts and UK competition regulators, with a view to informing NHS organisations what EU competition rules may mean for them.
NHS Confederation Annual Conference 2011 - view the presentation
The NHS European Office presented on this subject at this year's NHS Confederation Annual Conference in Manchester, at a session hosted by Browne Jacobson. You can view the presentation here.