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Concerted Action, on Trial Before the European Union

| News | Public and Regulatory Law

The Spanish Private Health Alliance (ASPE) has filed a complaint with the European Commission against Law 7/2017, on 30th March, of the Generalitat, on concerted action for the provision of services to people in the health sector

The Spanish Private Health Alliance (ASPE) has filed a complaint with the European Commission against Law 7/2017, on 30th March, of the Generalitat, on concerted action for the provision of services to people in the health sector, on the grounds that it violates Directive 2014/24/EU of the European Parliament and of the Council, of 26th February 2014; on public procurement and the principles of non-discrimination and free competition. This is to enable certain health services to be contracted directly with non-profit organisations, to the exclusion of commercial operators.

In light of this, it is worth asking what consequences might arise if the Commission were to find that the complaint was well founded.

In this case, the Commission may decide either to open infringement proceedings against the Kingdom of Spain or to close the case within one year. If the procedure were to be initiated, it would begin with the issuing of a letter of formal notice to the Kingdom of Spain requesting further information, which would have to be answered within a general period of two months. If Spain were to find that it had not complied with the Procurement Directive, the Commission would issue a reasoned opinion, requesting Spain to inform it of the measures taken to comply with the Directive.

If the Kingdom of Spain does not comply with this view, the Commission may refer the infringements in question to the Court of Justice of the European Union, which would then have jurisdiction to decide whether Spain has infringed EU law or not, in which case the Member State would be required to 'take the measures necessary to comply with the Court's judgment'.

Does this mean that the Law of the Generalitat on concerted action in health matters could be repealed, at least in part, in execution of a hypothetical ruling of the Court of Justice?

On a theoretical level, the answer is affirmative, provided that the ECJ considers that the Valencian law contravenes Union law because the exclusion of profit-making operators is not justified on the basis of the objectives of solidarity and budgetary efficiency, which are the only ones that, in accordance with the doctrine of the Court, allow the principles of non-discrimination and free competition to be excepted.

But in practice, we understand that it is difficult to advocate this violation of principles in the Law itself, and we must follow the specific application procedures for specific health areas. This has been recently understood by the High Court of Justice of the Valencian Community, in Judgment No.560/2018, on 12th June, in relation to the appeal filed against Order 3/2017, on 1st March, of the Ministry of Universal Health and Public Health, which regulates concerted action for the provision of services to people in the health sector. Stating that order does not infringe Community law and that the specific calls for concerted action - acts implementing the rule - must be taken into account in order to determine precisely whether the objectives of solidarity and budgetary efficiency which legitimise the restriction of competition are justified and/or fulfilled.

For this reason, the spotlight should be on the specific calls for proposals which are likely to infringe Community rules and principles and not on the rule which, because of its degree of abstraction, might not contradict Community rules.

 

For further information, please contact:

José Vicente Morote

jvicente.morote@AndersenTaxLegal.es

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