EU ANTITRUST: HOT TOPICS & NEXT STEPS

Prague, Czechia

EU ANTITRUST: HOT TOPICS & NEXT STEPS 2022

companies. The exclusive provision of this insurance would have a negative impact on the competitive environment in the relevant market of that insurance product and will give some competitors an advantage to the detriment of others’ (OECD, 1998, p. 114–115). At the same time, in European case law, usually Art.102 does not apply to the healthcare insurers, so the impact of Art. 102 on national healthcare systems remains limited (Makkink, 2017, p. 51). This may refer to applying Art. 106(2) TFEU to justify the restrictions of competition in the healthcare insurance sector. All three requirements must be fulfilled in order to achieve justification under Art. 106 (2) TFEU: 1) there must be a service of general economic interest; 2) the entity entrusted with general economic interest must be an undertaking; 3) “proportionality test”: competition would create conditions for obstructing the performance of the particular tasks assigned to PVZP. It is obvious that the second requirement is fulfilled because PVZP is a commercial undertaking providing insurance services. As for points 1 and 3, they will be analysed in relation to the state. Services of general economic interest (SGEI) are defined by the Member States which have wide discretion in this matter. Compulsory (not commercial) healthcare insurance usually belongs to SGEI. Economic interest is mentioned in the explanation of the Amendment too, as is stated: “Given the current historical deficit of the state budget and the expected negative balance of the economic results of health insurance companies, in this extraordinary time, it is necessary to highlight the fact that the public service VZP owns PVZP, which, as the largest health insurance company, is crucial for financial stability and therefore profits from its activities ending up in the form of dividends back in VZP, which is part of the public budget. The result of this change will be …also the support of the public budget entity of the Czech Republic” (Pozměňovací návrh [online], 2021). However, the question remains: is protecting the economic viability of VZP in the “general” economic interest? Or maybe should the economic interest of migrants and medical institutions be included in this definition? Protocol 26 on services of general economic interest (Protocol No 26) states that SGEI includes in particular a high level of quality, safety and affordability, equal treatment, and the promotion of universal access and of user rights. We could see the violation principle of affordability and universal access above; the situation with safety will be described further. Regarding guarantees of safety, it is worth noting that Czech National Bank (as a licensing authority) had expressed its disagreement with the proposed changes before their adoption: because this “poses an increased risk of failure of the entire health insurance system for foreigners if the preferred insurance company would face an unfavourable financial situation. Since the possibilities of replenishing the capital at the insurance company owned by the health insurance company

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