Does the European Commission measure Bulgaria with double standards?

Recently, the topic of public procurement of medicines in private medical institutions has once again gained media attention. With the start of the new political season, the internal pressure to act has increased, and the impact on the part of the European Commission remains unsubstantiated and creates the feeling of dubious goals and double standards. This naturally leaves an interesting aftertaste of intentions other than purely legal in the public sphere. Since the problem with price differences was legally resolved back in January of this year, we can only speculate as to what the regulatory restriction of competition among wholesalers is leading to. Additional doubt is also brought in by the fact that very detailed and specific questions about this procedure were asked to the European Commission through the established legal channels, which, after a long and persistent correspondence in the style of Roman bureaucracy, replied that it needed time to collect the documentation, which it had already described by name in the first letter. When the Commission itself does not implement its own laws and violates the European administrative procedure for access to information, why does it expect the Member States to comply in return? And since the beginning of this article is rather questionable, below we will describe the problems, steps and solutions facing Bulgaria regarding the European Commission's Public Procurement Directive.

Public law organization – the complex dance between the state and the private sector

One of the most important issues is the definition of a "public law body". According to the EU, such an organization must be established to meet needs of general interest that are not of a commercial nature, have legal personality and be financed or controlled by the state. However, private hospitals in Bulgaria do not meet these requirements - their nature is commercial, they pursue profit, and the funding they receive is compensation for services provided, not state aid. Another important argument in the puzzle is that the financial risk is borne personally by them, unlike publicly owned companies. This leads to the important conclusion - they are not "public law bodies". Private hospitals are independent economic entities that operate in a competitive environment and are subject to commercial risk, which places them outside the scope of the Public Procurement Directive.

The national context and the influence of legal traditions

One of the main focuses is how Bulgaria perceives and implements European legislation in the context of its national legal traditions. It is important to note that regulatory frameworks in different countries are built on the basis of historical context, social expectations and economic priorities. In this case, the Bulgarian legal system includes private medical institutions in a specific regime that exempts them from public procurement requirements due to their commercial and market orientation. This attitude stems from the understanding that health services, although they have social significance, also have an individual character, described in the Constitution, namely – the right to health of the individual. Due to populist political misconceptions created over the years, this position, however, contradicts the general trend in European legislation.

The effect of the criminal procedure and the future of private hospitals

The European Commission launched a criminal procedure against Bulgaria in 2019 due to shortcomings in the transposition of the directive. At this point, the criminal procedure can remain "dormant" in the administrative phase, but if the country does not take adequate measures or does not provide specific arguments, the EC can refer it to the Court of Justice of the EU. If Bulgaria argues well for the decisions and actions taken, it can avoid the financial sanctions that are presumably included in any such criminal procedure. It is important to specify that on average, on an annual basis, the EC opens about 1,800 criminal procedures against member states and closes an average of 600. Between 5% and 10% of them reach court, as the problems are resolved already in the administrative phase, after sufficiently good arguments by one of the two parties.

Lessons from other European countries

We give the example of Germany, the Netherlands and Austria – there private hospitals do not make public procurements. In Germany, for example, private hospitals are not considered public law organizations, because payments from health insurance funds are not accepted as state funding. In Austria, the situation is similar. In the Netherlands, the Supreme Court ruled that even a hospital created by three church medical institutions is not a public law organization. These examples show that the issue of the status of private hospitals is a challenge for many European countries, not only for Bulgaria, and that there is clearly a double standard on the part of the Commission towards our country.

The way forward – seeking a balance between private and public interest

While the EC continues to exert pressure on the country through the penalty procedure, the key ruling of the Court of Justice of the EU remains on the horizon, which could bring the necessary clarity. If the Court rules that private hospitals should be included in the scope of the directive, this will require major changes to the legislation and operations of these healthcare facilities. This is why the Bulgarian state and court referred the matter to the Court of Justice of the EU back in 2015. While this process is underway, private hospitals are like travelers on a bridge without railings, trying to balance the needs of patients, their economic goals and EU legal requirements. Their future depends on decisions that need to be taken at both national and European level. In conclusion, it must be said that equating private entities with public law organizations opens a Pandora’s box. It will not be a precedent or a coincidence if the next ones to fall under the blows of the Public Health Insurance Act are private pharmaceutical companies or wholesale and retail drug traders, pension insurance companies, and why not political parties, since they are also users of the public resource provided for the needs of health-insured persons by the NHIF. Unfortunately, every ill-considered step leads to one thing - waiting lists and hindering access to drug therapy for Bulgarian patients.

The article was originally published in the newspaper "24 Chasa".

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