Since 2009, antitrust and abusive practice laws have applied for the relationship between statutory sickness funds and service providers (Section 69 Paragraph 2 SGB V). At this point, the legislation took into account the specific conditions of the health care market: after all, these rules should not apply to compulsory contracts of sickness funds or their association with providers. Also, the public service mission of statutory sickness funds is given special consideration.
The applicability of antitrust laws on the relationship between sickness funds and providers is now being extended to the relationship between funds themselves, and their relationship with their insured clients.
The background behind this extension of antitrust laws is a result of a Landessozialgerichts judgment on 15th September 2011. After an agreement between various sick funds over the collection of additional contributions, the Bundeskartellamt initiated proceedings, but the court declared the organisation not responsible.
Since the beginning of the year, when the Monopolkomission der Bundesregierung had expressed their demand for the antitrust laws to be made applicable to sickness funds, there have been growing concerns from fund representatives, as such a provision could jeopardise their supply contracts. They received encouragement too, as in 2007,when the Bundesrat concluded in its May meeting that extending the antitrust laws into the statutory sickness sector was not advisable.
It seems the criticism is now coming to fruition. As part of the amendment process of the Gesetzes gegen Wettbewerbsbeschränkungen (GWB), the Bundesregierung wants the sickness funds to adhere to the antitrust law, albeit with some exceptions. It is said by the Gesundheitsministeriums that, in the formulation of these laws, „the antitrust assessment of statutory sickness funds must take into consideration their overall mission. The amendment is due at the end of the month, and will be discussed by the Gesundheitsausschuss des Bundestages. According to the report by the „Welt“, the Kartellamt will oversee statutory sickness funds in the future, but cooperation between individual funds is still possible without regulation in some cases. This is the case with the Gemeinsamen Bundesausschuss for sickness funds, doctors and hospitals.
The amendment now being discussed can be seen as a concession to the sickness funds, and will strengthen the Sozialgesetzbuch V determining supply contracts. The adjustments will still allow continued cooperation among the sickness funds, as is the case in the formation of fixed lump sum agreements for drugs. The Bundeskartellamt will only intervene when the funds act in an entrepreneurial manner, an example being in the determining and collection of additional contributions. Also, for the control of mergers, the Bonn authorities would be responsible. This is likely to delight smaller funds, such as the BKK, as the competition authorities will now offer support in light of the growing market power of larger funds.
It will be interesting to see how the bodies involved in this adaptation of antitrust laws for health care answer the following questions:
- Are statutory sickness funds in Germany now considered businesses under European antitrust law?
- What other features of social legislation must be considered to make further adjustments?
- Is this national legislation in effect authorising the application of antitrust laws to areas where European competition laws does not apply?
It can be assumed that these emerging issues and the discussions about the precise boundaries of the antitrust laws between the various stakeholders will continue for some time.