As you will have seen from my written submission, I take a slightly different tack. I preface my evidence by saying that I am a competition lawyer and my interest lies in issues of market access. I am conducting some new research on markets and healthcare provision, especially in the space of public health.
The European Union, as either an internal actor or an international actor, works within a well-defined framework of what we call conferred competences. In other words, the EU cannot act unless it is acting in areas that are conferred upon it by the member states. The member states remain the masters of the Treaty on the Functioning of the European Union, so unless it expressly states that the EU has competence to act in certain policy areas, it cannot take any such action. If trade is enumerated as one of those exclusive competences, we have to bear it in mind that the exercise of competences, even though they are exclusive, has to work within the complex framework of the treaty and the principle of conferral.
My interest in public health has spurred me on in researching the issue of competences. In respect of the provision of healthcare systems, article 168 of the treaty provides competences to the EU that are neither exclusive as trade competences nor even shared. The EU has limited competences when it comes to the provision of healthcare services; they are competences of a supporting nature, which means that the EU can act only to the extent that it is co-ordinating or supporting action of the member states.
We must remember that the treaty is the constitution of the European Union—no more and no less—and it can be amended only through treaty amendment procedures with the consensus of all member states. The treaty states that member states remain free to decide how to design frameworks for provision of public health services. That can be changed only if there is a treaty amendment, and not through an international agreement.
You will have seen my written evidence on the concerns that have been raised about the NHS. They are legitimate, and the public should engage in these discussions more widely, because these are live issues today. However, it is not through TTIP that the power of the member states to decide whether to provide healthcare services through the market or outside it is threatened. That is simply because the EU has no power, unless the member states confer that power on it, to modify the choices of the member states, and it cannot mandate them on what form and framework they should construct for provision of healthcare services.
People will be familiar with the patients directive and other pieces of legislation that the EU has enacted in healthcare. Again, however, they have to be seen as part and parcel of the supporting and co-ordinating competency. For example, the patients directive is there to facilitate provision of healthcare services for individuals who work in member states in which they are not resident. I am probably a shining example of that, because I am Italian and I sometimes find myself working in other member states.
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Pieces of legislation such as the patients directive enshrine a number of rights that are not new, because they are part of the acquis, or the case law, of the Court of Justice of the European Union, but which one can exercise vis-à-vis healthcare providers in other member states for the purposes of, for example, continuing provision of care. That is not going to change with TTIP, because such a change is possible only through treaty amendment and there is extensive case law that allows member states to justify derogations from principles concerning the single market and competition in healthcare, based on the public interest.
Public procurement is another area in which there is extensive EU legislation. However, in as much as the legislation that has been adopted at EU level is applicable, it is clear that there is a light-touch regime in awarding of contracts for what we would call essential services, including healthcare. Although there are principles of transparency and non-discrimination, member states can, as the Court of Justice has reiterated, apply principles that are inspired by non-market concepts with a view to, for example, localising services. In healthcare protection, there have been cases of areas being identified as those from which providers have to come, because that is germane to continuity of care.
Again, I stress at the very outset that although the EU might have exclusive competency in trade, it must be exercised within a framework of constitutional principles that are inspired by the principle of conferred powers. Because healthcare is a supporting competency, and not an exclusive or even shared competence, EU actions cannot have consequences that are as wide-ranging as might have been depicted so far. Again, public procurement is certainly very important and exists to ensure that everyone can have a go at bidding for public contracts, but if the convener allowed me I could entertain everyone here with a number of ways in which healthcare can be provided without public procurement coming into the picture.