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Title: Monitor and the competition and markets authority
Authors: Sanchez Graells, Albert
First Published: 20-Nov-2014
Publisher: University of Leicester School of Law
Citation: University of Leicester School of Law Research Papers, 2014, 14 (32)
Abstract: As part of its enforcement duties under the National Health Service (Procurement, Patient Choice and Competition) (No. 2) Regulations 2013, and in exercise of the powers assigned to it by the Health and Social Care Act 2012, the health care sector regulator for England (Monitor) is co-competent with the competition watchdog (Competition and Markets Authority) to enforce competition law in health care markets. Oddly, though, unlike other sector regulators, Monitor does not have a duty to promote competition but ‘simply’ to prevent anti-competitive behaviour. Monitor is also competent to carry out reviews and to decide bid disputes concerning procurement carried out by health care bodies, provided there is no formal challenge under the Public Contracts Regulations 2006. This paper contends that such a concentration of regulatory, competition enforcement and procurement review powers puts Monitor in a unique situation of (potential) structural conflict of interest that can diminish significantly its ability to act as an effective (co-competent) competition authority. This paper focusses on this difficult structure for the enforcement of competition law in the health care sector in England, in particular due to the asymmetrical, sui generis concurrency regime created by the Enterprise and Regulatory Reform Act 2013 and the Concurrency Regulations 2014. As examples of such conflict of interest and its implications, the paper assesses Monitor’s incentives to bend the interpretation of both art.101(3) TFEU and the new special regime on procurement of social services (arts.72-77 dir 2014/24). The paper concludes that this situation requires regulatory reform to devolve powers to the Competition and Markets Authority.
Series/Report no.: University of Leicester School of Law Legal Studies Research Paper Series;
DOI Link: 10.2139/ssrn.2528569
Version: Post-print
Type: Report
Rights: this text may be downloaded for personal research purposes only. Any additional reproduction for other purposes, whether in hard copy or electronically, requires the consent of the author(s). If cited or quoted, reference should be made to the following: A. Sanchez Graells, Monitor and the Competition and Markets Authority, University of Leicester School of Law Research Paper No. 14-32. © 2014 Albert Sanchez-Graells University of Leicester School of Law Legal Studies Research Paper Series
Appears in Collections:Reports, School of Law

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