The recently adopted UK National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013 include an interesting (and somehow
unsettling) provision authorising anti-competitive behaviour in the
commissioning of health care services by the National Health Service (NHS), if
that is in the (best) interest of health care users.
As briefly discussed here, generally, it seems that
under the new public procurement and competition rules applicable to the NHS,
whatever is considered in the “interest of patients” could trump pro-competitive
requirements and allow the commissioning entity to engage in distortions of
competition (either directly, or by facilitating anti-competitive behaviour by
tenderers and service providers)—as long as a sort of qualitative cost-benefit
analysis shows that net advantages derived from the anti-competitive procurement
activity. The apparent oddity of such general “authorisation” for public buyers
to engage in anti-competitive procurement of health care services deserves some
careful analysis, which this new paper carries out.
The paper assesses Regulation 10 of the NHS Procurement, Patient Choice and Competition Regulations 2013 and the substantive guidance published by the UK's health care sector regulator (Monitor) from the perspective of EU economic law (and, more specifically, in connection to public procurement and competition rules). The paper claims that there is a prima facie potential incompatibility between Regulation 10 of the 2013 NHS Procurement, Patient Choice and Competition Regulations and both EU competition law and public procurement law—which are, in principle, opposed to any anti-competitive or competition restrictive behaviour in the conduct of public procurement activities. Consequently, there is a need for an EU law compliant, restrictive interpretation and enforcement of the provision—at least where there is a cross border effect on competition and/or a cross border interest in tendering for the health care contracts, which triggers the application of both EU competition law and public procurement law.
The paper assesses Regulation 10 of the NHS Procurement, Patient Choice and Competition Regulations 2013 and the substantive guidance published by the UK's health care sector regulator (Monitor) from the perspective of EU economic law (and, more specifically, in connection to public procurement and competition rules). The paper claims that there is a prima facie potential incompatibility between Regulation 10 of the 2013 NHS Procurement, Patient Choice and Competition Regulations and both EU competition law and public procurement law—which are, in principle, opposed to any anti-competitive or competition restrictive behaviour in the conduct of public procurement activities. Consequently, there is a need for an EU law compliant, restrictive interpretation and enforcement of the provision—at least where there is a cross border effect on competition and/or a cross border interest in tendering for the health care contracts, which triggers the application of both EU competition law and public procurement law.
Sánchez Graells, Albert, New Rules For Health Care Procurement in the UK. A
Critical Assessment from the Perspective of EU Economic Law (February 2, 2014).
University of Leicester School of Law Research Paper No. 14-03. Available at
SSRN: http://ssrn.com/abstract=2389719.