The lack of clarity as to the scope of the health insurance exception enshrined in Article 206 of the Solvency II Directive has created uncertainties surrounding the implications for government intervention in the private health insurance market. A contentious interpretation of the health insurance exception, offered by former EU Commissioner Bolkestein, and the approach subsequently taken by the Commission and the Court of Justice of the European Union in assessing the compatibility of Member State intervention in private health insurance have led to a divergence in the application of EU law, which further increases uncertainties around the legality of Member State intervention. This article proposes an alternative interpretation of the health insurance exception that draws on a contemporary understanding of private health insurance as a socio-economic institution aimed at achieving a highly competitive social market economy. This alternative interpretation extends the applicability of the health insurance exception from substitutive private health insurance to complementary private health insurance that covers statutory user charges and thus improves the compliance of national health insurance systems in several Member States with EU law and enhances the coherence of EU law.
Slovenian legislation defines complementary health insurance as an activity of the public interest, which represents an inseparable and essential element of healthcare system and as such pursues objectives identical to those of compulsory health insurance – financial security of population against high healthcare expenses and appropriate and fair access to efficient and quality healthcare. EU Member States often introduce different regulatory measures to safeguard the public interest in the field of economic activities. These measures often contravene the Union acquis (the rules on the functioning of the internal market and competition law), which is in principle unacceptable. This article aims to define Slovenian complementary health insurance as a service of general economic interest, which opens up new prospects for the Member States’ adoption of the regulatory measures that are not compliant with therules on the functioning of the internal market and EU competition law.
At the height of the migration crisis, around 2.4 million asylum claims were submitted in the European Union Member States. The enormous weight of a massive inflow of migrants and immigration‐related threat perceptions prompted Member States to start reintroducing border controls at EU internal borders, which resulted in a ‘temporary suspension’ of the Schengen agreement on open borders. With the use of zero‐sum phenomena and application of public goods theory to asylum policy, the article seeks to explain the influence of a structural limitation of European integration in the form of asymmetric integration of asylum policy on the sustainability of the Schengen agreement on open borders. To eliminate this structural limitation and thus strengthen the sustainability of the Schengen agreement on open borders, the article proposes a fully functioning Common European Asylum System (CEAS) based on a unified asylum system and governed by a centralized EU institution.
Ever-increasing health spending, which, according to future projections, continues to outpace economic growth, will further endanger the financial sustainability of health systems. In a quest to improve the efficacy and efficiency of the health system and thus strengthen its financial sustainability, member states are employing market-based mechanisms to finance, manage, and provide health care. However, the introduction of elements of competition is constrained by the application of EU competition law, which raises significant concerns regarding the applicability of competition law and its limits in the field of health care. Due to the lack of a clear definition in EU legislation, the applicability and scope of competition law are determined on a case-by-case basis, which reveals an inconsistent approach by the European Commission and the CJEU regarding the application of competition law to health care providers and has created legal uncertainty. The aim of this article is to analyze relevant decisions by the commission and the CJEU case law in the pursuit of “boundaries” that may trigger the applicability of competition law with regard to health care providers. Based on the findings of the analysis, the article proposes a set of principles or guidelines for determining whether a health care provider should be considered as an undertaking and, as such, subject to EU competition law.
Complementary health insurance is divided between the internal market (market principles) and social dimension, wherein the state has an extremely difficult task, as it must create the conditions necessary for the fair and efficient functioning of the health care financing system. Slovenia has failed to successfully accomplish this task, which consists of both ensuring the social dimension and also facilitating the operation of market principles. The aim of this article is not on the functioning of market principles, which are covered by the field of economics, but is instead on analyzing the dichotomy between the internal market (the rules that govern the functioning of the internal market) and the social dimension (the rules that enable the exercise of the social function), and, in this light, analyzes the legal regulation of the Slovenian complementary health insurance. Analysis of the legal regulation highlights the shortcomings in ensuring the social dimension, shortcomings which are, with the help of the measures proposed in the concluding section of the article, remedied by the author.
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