NHSC ANNUAL CONFERENCE 2009

1. LEIGH HANCHER NHSC ANNUAL CONFERENCE 2009

2. STRUCTURE OF PRESENTATION • THE SCOPE OF THE EU TREATY RULES AND IMPLICATIONS FOR THE NHS • FREE MOVEMENT • COMPETITION • STATE AID HORIZONTAL DIRECTIVES – IMPLICATIONS FOR THE NHS PROCUREMENT WORKING TIME ADVERTISING OF PRESCRIPTION PRODUCTS

3. THE TREATY RULES • FREE MOVEMENT RULES => MEMBER STATES • COMPETITION AND STATE AID RULES => UNDERTAKINGS. • NB. FREE MOVEMENT RULES APPLY TO WIDE RANGE OF MEASURES • NB COMPETITON RULES CAN IN CERTAIN SITUATIONS ALSO APPLY TO STATE MEASURES!

4. THE FREE MOVEMENT RULES • THESE RULES ARE ‘DIRECTLY EFFECTIVE’ • = CAN BE RELIED ON TO SET ASIDE CONFLICTING NATIONAL RULES • THESE RULES FORBID ANY MEASURES WHICH HINDER ACCESS TO AN ACTIVITY/MARKET • UNLESS JUSTIFICATION CAN BE MADE OUT BY MS - TREATY EXCEPTIONS AND ‘RULE OF REASON’ • EXAMPLES IN HEALTH SECTOR • - Case C-169/07 Hautlauer; C-570/07 Perez

5. THE COMPETITION RULES • APPLY TO UNDERTAKINGS/ECONOMIC ACTIVITIES • WHAT IS AN UNDERTAKING? • EXAMPLES OF RELEVANCE TO THE NHS • FENIN – SPANISH HOSPITALS • BETTERCARE - UK OFT RULING

6. THE STATE AID REGIME • ART 107 PROHIBITION ON STATE AID TO UNDERTAKINGS • ART 108 – NOTIFICATION TO COMMISSION FOR DECISION ON COMPATIBILITY • ART 106(2) EXEMPTION FOR SGEIS • Case T-289/03 BUPA • BELGIAN HOSPITALS – Comm Dec OCT 2009 • MONTI PACKAGE OF 2005 – SPECIAL RULES FOR REGIONAL HOSPITALS

7. THE COMPETITION RULES • ART 101 – PROHIBITS RESTRICTIVE AGREEMENTS/CARTELS • EXAMPLES: GLAXO; AOK • ART 102 – PROHIBITS ABUSE OF A DOMINANT POSITION • EXAMPLES IN HEALTH CARE SECTOR • ASTRA ZENECA; FENIN

8. HORIZONTAL DIRECTIVES • PROCUREMENT RULES • WORKING TIME • ADVERTISING OF PRESCRIPITON PRODUCTS

9. PROCUREMENT • RULES APPLY TO ALL SECTORS INCLUDING HEALTH • SPECIFICATION OF FREE MOVEMENT RULES • APPLY TO PUBLIC SECTOR BODIES CONTRACTING FOR WORKS, SERVICES AND SUPPLIES ABOVE THRESHOLDS • PUBLIC/PRIVATE PARTNERSHIPS • IN-HOUSE EXCEPTION • EVEN IF PROCUREMENT RULES DO NOT APPLY – FREE MOVEMENT RULES DO!

10. THE WORKING TIME DIRECTIVE • ECJ RULINGS ON 48 HOUR MAX WEEK • ACTIVE/INACTIVE ‘ON CALL’ • OPT-OUT CLAUSE • PROPOSALS FOR REFORM – NOW STALLED – COMMISSION REVIVES DIALOGUE WITH SOCIAL PARTNERS UNDER ART 154 TFEU

11. ADVERTISING OF MEDICINES • THE ABPI CASE C-62/09 - AN UNEXPECTED USE OF AN EU DIRECTIVE? • RESTRICTIONS TO DOCTORS ON PRESCRIPTION PRODUCTS = ADVERTISING OR NOT UNDER ART 94 OF EU DIRECTIVE 2001/83? • ECJ RULING OF APRIL 2010 -> NOT ADVERTISING • ANY LESSONS?

12. CONCLUSIONS • EUROPEAN LAW IS OF MAJOR IMPORTANCE TO PUBLIC AND PRIVATELY ORGANISED HEALTH CARE SERVICES • FREE MOVEMENT RULES CAN AFFECT ORGANISATION AND DELIVERY OF HEALTH CARE • COMPETITION RULES CAN BE FAR-REACHING IN IMPACT IF ACTIVITIES ARE CARRIED OUT BY UNDERTAKINGS • EU DIRECTIVES – AS INTERPRETED BY THE COURTS – CAN ALSO HAVE FAR-REACHING AND SOMETIMES UNPREDICTABLE EFFECTS.

13. Questions? These are presentation slides only. The information within these slides does not constitute definitive advice and should not be used as the basis for giving definitive advice without checking the primary sources. Allen & Overy means Allen & Overy LLP and/or its affiliated undertakings. The term partner is used to refer to a member of Allen & Overy LLP or an employee or consultant with equivalent standing and qualifications or an individual with equivalent status in one of Allen & Overy LLP's affiliated undertakings.