The Compatibility of Private Health Insurance Schemes with EU Law: Applying the Health Insurance Exception beyond Substitutive Private Health Insurance

Abstract

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.

Re‐establishing needed limits: European competition policy's role in European healthcare systems and the lessons of the Dôvera case

“…The presence of the risk equalisation scheme in Slovakia, as the CJEU noted, also undermined the GC's attempts to dismiss these social solidarity characteristics of the regime. As some have noted however (Nikolić, 2020; Van de Gronden & Guy, 2021), the Commission's approach does contrast with its findings with Dutch healthcare system where it found this to be competition ‐orientated. In this similarly SHI‐type Slovak case, the Commission appeared intent to emphasise the social solidaristic elements.…”

“…The questions concerning the presence of an ‘undertaking’, funding streams and the broader regime are logically tied together, a process that became more complicated when the GC decided to broaden the definition of what constituted an undertaking to include non‐profit based entities, thus expanding the forms of funding streams that came with these entities. This represents the core disagreement between the European Commission and the GC in Dôvera , with the former seeking a narrower interpretation of the undertaking concept and the latter a broader definition where any ‘economic’ activity that may exist is emphasised (Nikolić, 2020; Van de Gronden & Guy, 2021). Again, the Commission also took issue with the GC's assertions over the distortions to competition.…”

“…In the example of the EU free movement law's intervention into national healthcare, an engagement between social policy researchers and European level law‐based subject matter was at the centre of an influential political science literature (Greer, 2006, 2008; Greer & Rauscher, 2011; Martinsen 2005, Martinsen & Vrangbæk, 2008, Vollaard et al, 2016). Such political science and social policy‐based engagement into this potentially problematic intervention from EU competition policy however has not yet materialised, so by implication leaves the subject to legal scholars (Hancher & Sauter, 2012; Nikolić, 2020; Sauter, 2015; Szyszczak, 2009; Syzszczak, 2015, 2017; Van de Gronden & Guy, 2021). This legal scholarship has been substantial as well as hugely important, but a renewed focus on healthcare as a social policy question is required so that key questions of social provision and distribution can be emphasised.…”

Criteria for the selection of complementary private health insurance: the experience of a large organisation in Iran

“…Additional health coverage can be purchased through private health insurance in addition to specialised insurance for which only specific individuals are eligible. Despite great diversity in types, benefits, and roles of private health insurance, it can have three forms: substitutive, supplementary, and complementary [ 2 ]. Substitutive insurance provides the same or similar benefits as statutory health insurance for people who are either excluded from some or all aspects of statutory cover or allowed to choose between statutory and private coverage [ 3 ].…”