Congress report - European Health Forum Gastein

Forum III: Health and the Single European Market
workers mainly Spanish companies and groups bid for the tenders. The compliance with the
communitarian regulations has not attracted foreign companies. At another level we shall
mention the computing services where participation of foreign companies is greater due to
the sector's configuration.
Other contracted services, of less economic importance, are publicity for health promotion
campaigns, training services or legal services in which there is no communitarian
participation.
Insurance services are a recent addition to the Spanish health system. Communitarian
regulations have an influence on the contracting of civil liability insurance policies due to
their high costs which require advertisement at communitarian level. This sector, though
supervised, requires a mandatory administration authorisation in order to operate the various
insurance categories and has been influenced by the regulations established by the
communitarian institutions. This influence has forced the Member States to adapt their
internal regulations. In Spain such adaptation has been carried out according to the Private
Insurance Code and Supervision Act 30/1995. The contract type envisaged by the Spanish
State Contracts Act of 1995 revealed itself as inadequate. Which is why, after the reform, this
service is considered as a private contract, though its awarding should comply with the
contracting communitarian principles.
To conclude this brief description, we will mention a series of contracts with patrimonial
content and therefore excluded from the procurement legislation, but which have to be
awarded complying with the communitarian principles. They are the awarding of contracts for
the opening of cafes, press and lottery stands, cash lines and other business premises
appropriate to health service buildings. In this contract category, rather unclear regarding its
legal status, the communitarian regulations have not been applied and consequently there is
no communitarian competition.
UNintended effects
The analysis of the influence that public procurement has in the health sector demands that
we first look at some determinant regulations. First, the basic legislation on public
procurement, according to the Spanish Constitution -article 149.1.18-, establishes it as an
exclusive State competency. Being considered of a widespread nature, affecting the
Administration proceedings in various sectors and closely related to the market regulations,
the Spanish Regional Governments will only be competent with regard to its legislative
development. Although the Spanish Constitutional Rights Court in its sentence of April 22nd 1993, rendered for case 513/1987 regarding a conflict of competencies, established that
Regional Governments have broad competency in the sectors which affect the organisation of
their administrative proceedings and in those areas of competency which are granted by
statutory dispositions. For instance, some Spanish Regional Governments can regulate the
extent of competency of the contracting authorities, the guarantee that bidders provide as
financially and economically able, the securing and or exemption of guarantees in certain
contracts, the reasons for ruling on a public service management contract, the leasing of real
estate, payments in cash or other goods in a supplies contract, the summoning of Award
Tables, etc.
On the other hand, concerning the health sector, the Regional Governments have major
competencies in health service management. Together, the various Regional Health Services
form the Spanish National Health System.
It is probably in the health sector where the debate on new management forms and the need
to overcome the traditional model under the administrative law has had greatest importance.
The National Health System Analysis and Evaluation Commission appointed by the Spanish
International Forum Gastein, Tauernplatz 1, A-5630 Bad Hofgastein
Tel.: +43 (6432) 7110-70, Fax: Ext. 71, e-mail: info@ehfg.org, website: www.ehfg.org
133