About the marketing of civil law entities and public networks in healthcare

After adopting the amendment of the Health Act, a huge avalanche of criticism was triggeredand especially threats. We were able to read that the adopted amendment will fully bury health care and completely destroy public health in the Republic of Slovenia. We were able to read that concessionaire organizational skills are credited with profits generated. We were able to read the allegations that healthcare is supposed to be a marketing activity. Even the allegations of the importance of competition in the public service have found themselves in between.

Health discussions go in a completely wrong direction. We should primarily take care of and discuss how to protect the operation of the public health network and what measures to take for this purpose. But the discussion of individuals’ rights is at the forefront. We talk more about the interests and rights of private contractors than about users’ rights and interests. Our country, including the Constitutional Court, favors the interests of private individuals. But the task of the state and all its state bodies is to provide access to the public good – that is, the protection of users.

All of these allegations and approaches arise from a misunderstanding of the public health service. A public health service is a network (according to EU terminology – network). The essence of the network is that in everyday life and in emergency, it enables the normal functioning of the state and/or society. Therefore, networks have public good status (in legal theory from the beginning of the 20th century). Networks are made up of people and infrastructure. This means that the state is responsible for providing the necessary infrastructure and staff. Because it is a public good, its management and access is provided through the public service regime.

General interest

The EU law states the type of criteria that must be fulfilled to be considered as an activity of the general interest (eg freeness, non -competitive and non -accordance in use…). The EU Commission cited national concepts for public services in the concept of general interest activity. In doing so, she wanted to give only a common European concept for a different national name. EU law explicitly stipulates that market rules are not applied in the field of general interest activities. In doing so, the EU admits that the market does not work and cannot operate in these areas. The definitions of public services are left to individual Member States and local communities. At the same time, EU law prohibits the simultaneous coexistence of public service and marketing activities.

Since the public service is a natural or administrative monopoly, we can only talk about monopoly profits and not a profit resulting from better management or even better work organization (regardless of the tariff system of payment of services). The task of the grantor is to take away the monopoly profit. The grantor can take this monopoly profit in two ways:

with a concession fee – at the same time it must determine the economic efficiency of each entity individually and determine the appropriate amount of the concession fee;

By determining the request for non -profit – in which case it is a general cutting of any monopoly profit.

Non -profit requirements should therefore not be seen as a restrictive of the rights of individual marketing entities, but as a justified mechanism of managing monopoly profits. Any practice permitted that concession revenues are used for investing in an activity and then increases with transfer prices profits from market activity, indicates a disrespect for the EU’s rules on a single market.

The EU rules clearly require that a separate bookkeeping must be kept with a public service and marketing activity. And transfer prices rules apply in this case as well. The purpose is to prevent the distortion of competition. Disproportionate profits – higher than an industry average – may be considered unauthorized state aid under EU law and a consequence of functioning in the monopoly. According to the records in the daily newspaper, we have a real Balkan wild west in this area in the Republic of Slovenia. The Constitutional Court will therefore probably have to accept the interpretation that statutory non -profit should be understood as non -profit at the level of individual civil law. The period of the last twenty years shows that these countries and health actors are unable to find a different solution to prevent monopoly profits and to comply with EU law requirements.

Public service and profit

We need to ask ourselves a fundamental question: can public services be profitable? If the answer is down, then no part of the public service system may and can be intended to share profit to a private person. As a rule, the public good has no price. If we allow profit contractors, then it means that we allow the partial privatization of the public good. This means that in this part, users receive a smaller share of the public good – because part is collected by a profit contractor.

If we allow the profit implementation of the public service, a number of questions are asked. How do we determine the price of a public good? Who determines this price? What is the methodology of determining the price of a public good? Is the privatization of the public good at all permissible? Despite awarding concessions, no one has yet answered these questions (including the Constitutional Court). In this part, concepts have gone into a state of complete long -term winter hibernation (which has been lasting 35 years). If the activity is carried out non -profit, then the revenue created over expenditure is used to develop activity and carry out a larger program of the program than the agreed and paid by the Health Insurance Institute. The purpose of non -profit action is to ensure maximum access to the public good. Is this not the purpose of the constitutional principle of rational use of public property?

How does proficiency affect the operation of the public network? Primary by the fact that the profit concessionaires are located in environments that allow for the highest accumulation of capital. This means emptying the countryside, as there is no chance of making big profits there. Austria and Germany have a problem. Advocating profit concessionaires in practice means impairing access to public good in the countryside. Another consequence is the creation of public health network instability. Private contractors may at any time decide to stop working under a service or contract. In practice, this means that public institutions cannot realistically plan work. The concessionaire may decide to return the concession when the profit generated does not achieve its expectations. Opposite public institutions, concessionaires are much more flexible when transitioning from concession to market activity and less reliable from the point of view of managing the public network. Concels should clearly define what happens in the event of a concessionaire failure – what are the actual real scenarios to maintain the same access to the public good. Obviously no one thought about this, which shows an increase in the number of market providers and the increase in the number of « against their own will of undecided patients. »

The boom of parallel market nets

Responsibility for the operation of the network means ensuring staffing and infrastructure conditions. In order to meet the infrastructure conditions, it makes sense for the state to award concessions. It is an institute that the EU knows by the concession of the construction concession. In this case, the state is faster and cheaper to have the necessary infrastructure (which is subject to slightly different principles and rules). From the point of view of the principle of rational use of public property, it is questionable to grant concessions in the event that the concessionaire retains the infrastructure facility (office, hospitals, clinics) after the concession.

Photo: Voranc Vogel/Work

In order not to say that I am propagating communism – these are quite ordinary concessions known by legally developed Western civilization from the last century or in some places since the 19th century. But obviously in the Republic of Slovenia we are more legally developed than any other countries with a significantly longer state tradition. The country must also take care of the staffing of the network. The normal country will therefore use all mechanisms to achieve this purpose. One of the mechanisms is also limiting or even a prohibition of marketing activity.

For example, I warn Smits and Peerbooms (C-157/99). The Court of EC stated in the judgment that « the provisions of the EU Treaty enable the restrictions of marketing and hospital services in the event that this threatens the maintenance of the professionalism of existing services or minimum personal abilities that are necessary for public health or even for the survival of the population. » In our country, however, we allow the construction of a parallel marketing system that personally impoverishes the public health network and leaves the public health network at the mercy of external contractual contractors.

A lay observer can merely find that obviously left -wing and center -right coalitions care a little for the survival of the population. In our country, for all clients, the proficiency of concessionaires and market doctors and their protection is more important than protecting the work of the public health network. If they are parties to voters, then for aplamation, they should support any limitation of the proficiency and provision of marketing services in favor of the operation of the public health network and in favor of its sufficient personnel and infrastructure complete. I would even expect the interpellation of the Minister of Health, because it allows for the boom of parallel market networks that impoverishes the public network. Or do we have clients who define the care of the good voters only declaratory – and only when they benefit them?

I think it is time to stop looking at the public health network and public health service through the prism of private interests and rights of private contractors. Given the existing situation, it is recently that the state and its authorities protect the operation of the public health network. I would expect all state authorities to take and support measures that contribute to the human resources and infrastructure enrichment of the public health network. However, the foundations for discussions on profitability, the performance of the private sector and the construction of market health work are prohibited until the public health system operates in accordance with the expectations of users and, above all, the purpose of the public good. Of course, in practice, this means the annulment of most marketing permits, the cancellation of permits, the espees issued, etc. The law allows the competent minister to determine what can be carried out in healthcare as a marketing activity. Therefore, there is a legal basis for such measures, the question is merely the political will of current coalition and opposition parties.

Who supports the Constitution of the RS

As health care actors have apparently not managed to agree on a functioning formula, it is now on the move by the state to achieve the normal functioning of the public health system by using coercive measures, thus ensuring accessible security to all residents. With full parliamentary support for such measures, all parties will actually show that they seriously think of rural development, care for public health and population survival, and that they actually care about the protection of the public good. Namely, the Laissez-Fair’s current approach leads to an example of Bergamo near Covido-19 or electric eclipse in California in 2000 and 2001. Such an approach leads to even greater emigration from the countryside. Such an approach leads to an even more forcibly undefined patients.

Let us ask ourselves if we really want the complete collapse of the public health network because no policy in the last thirty -five years could decide and study what the term public good meant, and because the health care actors have failed to agree on the functioning formula. It may be time for all politicians to finally show how much they actually support the constitutional regulation of the Republic of Slovenia.

***

Borut Stražišar, Doctor of Legal Sciences, Lecturer at Erudio.

The article is the opinion of the author and does not necessarily express the views of the editorial board.