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ACELG visiting researcher Mary Guy (Lancaster University) speaks to us about her transition from language to law, her interest in EU competition law and health law and how this led to her interdisciplanary research project on 'EU Health Law and Policy.'

From Language to Law

I worked as a translator (Dutch/French/German to English) for several years, and through this became involved in policy work – I went back to academia having found that I was more interested in researching and analyzing law, not just translating it for others to do this!

When I was completing my LLM, the Health and Social Care Act 2012 (HSCA 2012) had recently been enacted in England, and I wanted to understand the controversies surrounding this, the relationship between the NHS and private healthcare and how this may affect the underlying principle of access to healthcare which is based on clinical need, not the ability to pay.

I was able to make use of my translation background by conducting comparative research to understand the HSCA 2012 reforms by reference to the Dutch experience of introducing competition and mandatory private health insurance in 2006. The two sets of reforms were the focus of my monograph, Competition Policy in Healthcare – Frontiers in Insurance-Based and Taxation-Funded Systems (Intersentia 2019).

The EU competition law framework has been influential in both countries’ reforms, prompting my interest in the wider field of EU health law and policy.

Trying new approaches to EU Health Law and Policy

There has been a growing body of literature by (mainly) lawyers and political scientists, sometimes writing together, and sometimes not, which has made it possible to speak of EU health law and policy as a subject in its own right. Dr Eleanor Brooks (University of Edinburgh) and I wanted to collaborate and try new approaches to expand the important work done so far and reflect changes in the EU’s approach, initially following the economic crisis.

For the project we have each been able to try something new – notably, using a World Café format to explore research challenges at an early stage of the project, and more recently, ensuring contributions to our Health Economics, Policy and Law special issue (forthcoming 2020) were peer reviewed by a lawyer and a political scientist.

Bringing together lawyers and political scientists in this project has also identified which themes appear to be of interest to particular disciplines, which prompts the question of why this may be. For example, political scientists have been writing about the healthcare-related Country-Specific Recommendations (CSRs) issued in the context of the European Semester for a few years. But the paper I presented at ACELG and am currently working on appears among the first to focus on this from a law perspective. Also, competition policy in healthcare is something to have received attention primarily from competition lawyers, but encompasses various themes which could well benefit from analysis by political scientists.

Free to experiment?

Article 168(7) TFEU draws a distinction between EU and Member State competence regarding national healthcare system organization. In the paper I explore how this is “challenged” and elaborated by the applicability of EU competition law and by the issuing of healthcare-related CSRs, which may reference competition and marketization reforms. 

So although Article 168(7) TFEU appears to suggest that Member States are free to experiment with competition and marketization reforms, this becomes challenged when such experimentation triggers applicability of EU competition law (by the existence of “economic activities”). However, this may merely prompt questions of whether a particular activity can be designated a Service of General Economic Interest (SGEI), and thus become partially immune from the competition rules. There have been calls from Member States for further clarification at EU level of the SGEI exception regarding healthcare, suggesting that the delineation between the respective competence under Article 168(7) TFEU is less clear-cut than may first be thought.

The issuing of healthcare-related CSRs has also been regarded as a direct challenge to Member State competence regarding national healthcare system organization. However, the extent to which national reforms may be shaping the formulation of CSRs may suggest different questions. For example, if a Member State decides to introduce specific competition and marketisation reforms, this may not only trigger consequences relating to the applicability of EU competition law, but also questions of consequences of non-compliance if these reforms are “formalised” by inclusion in CSRs.

The Covid-19 pandemic has, of course, raised more pressing questions about the EU’s public health competence and implicitly the scope of Article 168(7) TFEU.

The experience of national healthcare systems

The project concludes with the publication of a special issue of Health Economics, Policy and Law, but we are exploring options for developing related work and expanding the network emerging this project both in EU Member States and beyond.

I would also like to continue comparative and interdisciplinary work examining the experience of national healthcare systems in engaging “on the ground” with reforms which may have an EU-level dimension. These invite questions which I think are best tackled from an interdisciplinary approach, combining law and, for example, sociology, as well as political science.

Read more about Mary Guy's public lecture at ACELG on 2 March 2020.