The BetterCare judgment—a challenge to health care

European competition law may cover publicly funded, privately provided care

A landmark decision by the United Kingdom's Competition Commission could make all contracting out and commissioning of health care by NHS and social services subject to European Union competition law, rather than a matter for national public health policy. Healthcare reforms in the United Kingdom are already exacerbating tensions between the European Union's economic constitution and national control over healthcare policy. In principle, competition rules in the European Community focus on economic activity and entrepreneurial freedoms, leaving “true welfare state activity” to member governments,1 but a recent judgment by a United Kingdom tribunal shows how the courts are moving the dividing line between economic and social activities.2

In November 2000, the BetterCare Group (a private company selling nursing and residential care in Northern Ireland) used the United Kingdom's competition law to challenge the contract price for private nursing home beds arranged with North and West Belfast Health and Social Services Trust (Northern Ireland's combined local commissioner for health and social care).

BetterCare alleged that the contract price was set too low because the trust was abusing its dominant market position in violation of competition rules.2 The director general of fair trading, who is responsible for policing competition rules, rejected the complaint. He ruled that competition rules did not apply in this case because North and West's provision of social services was not an economic activity. BetterCare, however, appealed against this ruling on the grounds, among others, that the European Court of Justice, which …