Transcript Leigh Hancher (Allen Overy)

LEIGH HANCHER
NHSC ANNUAL CONFERENCE 2009
STRUCTURE OF PRESENTATION
 THE SCOPE OF THE EU TREATY RULES AND
IMPLICATIONS FOR THE NHS
 FREE MOVEMENT
 COMPETITION
 STATE AID
HORIZONTAL DIRECTIVES – IMPLICATIONS FOR
THE NHS
PROCUREMENT
WORKING TIME
ADVERTISING OF PRESCRIPTION PRODUCTS
THE TREATY RULES
 FREE MOVEMENT RULES => MEMBER STATES
 COMPETITION AND STATE AID RULES =>
UNDERTAKINGS.
 NB. FREE MOVEMENT RULES APPLY TO WIDE
RANGE OF MEASURES
 NB COMPETITON RULES CAN IN CERTAIN
SITUATIONS ALSO APPLY TO STATE
MEASURES!
THE FREE MOVEMENT RULES
 THESE RULES ARE ‘DIRECTLY EFFECTIVE’

= CAN BE RELIED ON TO SET ASIDE
CONFLICTING NATIONAL RULES
 THESE RULES FORBID ANY MEASURES WHICH HINDER
ACCESS TO AN ACTIVITY/MARKET
 UNLESS JUSTIFICATION CAN BE MADE OUT BY MS TREATY EXCEPTIONS AND ‘RULE OF REASON’
 EXAMPLES IN HEALTH SECTOR
 - Case C-169/07 Hautlauer; C-570/07 Perez
THE COMPETITION RULES
 APPLY TO UNDERTAKINGS/ECONOMIC
ACTIVITIES
 WHAT IS AN UNDERTAKING?
 EXAMPLES OF RELEVANCE TO THE NHS
 FENIN – SPANISH HOSPITALS
 BETTERCARE - UK OFT RULING
THE STATE AID REGIME
 ART 107 PROHIBITION ON STATE AID TO
UNDERTAKINGS
 ART 108 – NOTIFICATION TO COMMISSION FOR
DECISION ON COMPATIBILITY
 ART 106(2) EXEMPTION FOR SGEIS
 Case T-289/03 BUPA
 BELGIAN HOSPITALS – Comm Dec OCT 2009
 MONTI PACKAGE OF 2005 – SPECIAL RULES FOR
REGIONAL HOSPITALS
THE COMPETITION RULES
 ART 101 – PROHIBITS RESTRICTIVE
AGREEMENTS/CARTELS
 EXAMPLES: GLAXO; AOK
 ART 102 – PROHIBITS ABUSE OF A DOMINANT
POSITION
 EXAMPLES IN HEALTH CARE SECTOR
 ASTRA ZENECA; FENIN
HORIZONTAL DIRECTIVES
 PROCUREMENT RULES
 WORKING TIME
 ADVERTISING OF PRESCRIPITON PRODUCTS
PROCUREMENT
 RULES APPLY TO ALL SECTORS INCLUDING
HEALTH
 SPECIFICATION OF FREE MOVEMENT RULES
 APPLY TO PUBLIC SECTOR BODIES
CONTRACTING FOR WORKS, SERVICES AND
SUPPLIES ABOVE THRESHOLDS
 PUBLIC/PRIVATE PARTNERSHIPS
 IN-HOUSE EXCEPTION
 EVEN IF PROCUREMENT RULES DO NOT APPLY
– FREE MOVEMENT RULES DO!
THE WORKING TIME DIRECTIVE
 ECJ RULINGS ON 48 HOUR MAX WEEK
 ACTIVE/INACTIVE ‘ON CALL’
 OPT-OUT CLAUSE
 PROPOSALS FOR REFORM – NOW STALLED –
COMMISSION REVIVES DIALOGUE WITH
SOCIAL PARTNERS UNDER ART 154 TFEU
ADVERTISING OF MEDICINES
 THE ABPI CASE C-62/09 - AN UNEXPECTED
USE OF AN EU DIRECTIVE?
 RESTRICTIONS TO DOCTORS ON
PRESCRIPTION PRODUCTS = ADVERTISING OR
NOT UNDER ART 94 OF EU DIRECTIVE 2001/83?
 ECJ RULING OF APRIL 2010 -> NOT
ADVERTISING
 ANY LESSONS?
CONCLUSIONS
 EUROPEAN LAW IS OF MAJOR IMPORTANCE TO PUBLIC
AND PRIVATELY ORGANISED HEALTH CARE SERVICES
 FREE MOVEMENT RULES CAN AFFECT ORGANISATION
AND DELIVERY OF HEALTH CARE
 COMPETITION RULES CAN BE FAR-REACHING IN
IMPACT IF ACTIVITIES ARE CARRIED OUT BY
UNDERTAKINGS
 EU DIRECTIVES – AS INTERPRETED BY THE COURTS –
CAN ALSO HAVE FAR-REACHING AND SOMETIMES
UNPREDICTABLE EFFECTS.
Questions?
These are presentation slides only. The information within these slides does not
constitute definitive advice and should not be used as the basis for giving definitive
advice without checking the primary sources.
Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The
term partner is used to refer to a member of Allen & Overy LLP or an employee or
consultant with equivalent standing and qualifications or an individual with
equivalent status in one of Allen & Overy LLP's affiliated undertakings.