The European Court of Justice has over the past years clearly emphasized in its decisions that application of the European competition law cannot be generally excluded in the field of social security. Since the European competition law is applicable to commercial companies exclusively, the quintessential question is whether a health insurance provider has a status of company under the European competition law. The relevant ECJ's case-law demonstrates that health insurance providers arc not unifomly considered to be companies. It is necessary to evaluate their individual activities to establish whether they are in fact social or commercial in nature. The focus should be placed on content, as well as on the kind and manner of performing a certain activity. Unlike commercial activities, social activities exclude labeling a health insurance provider as commercial company. In this case, a health insurance provider that performs a certain social task is excluded from the competition law. The ECJ will not recognize a social character of a company in case a health insurance provider performs a commercial activity on market in competition with private insurance company. The European competition law includes prohibition of cartels (EC Treaty, art. 81), as well as prohibition of abuse of dominant position on market (EC Treaty, art. 82). Both situations may exist at the same time. Violation of prohibition of cartels may occur in case when health insurance providers reach a decision allowing providing of certain services, e.g., medical services, or reach an agreement with association of physicians. Abuse of dominant position on market may occur in case when patients' funds act as medical services seekers and, at the same time, act as monopolists. As monopolists they are obliged to conclude a contract with physicians. If they do not comply, they are violating prohibition of abuse, unless there arc particularly justified reasons for such a behavior. As a consequence, the system of limited agreement with contracted physicians is not allowed if in choosing physicians and contractual terms, the health insurance provider acts with arbitrariness or abuse. Moreover, even in case a health insurance provider, considered a commercial company, breaches European competition law, there is a possibility for non application of competition law. The EC Treaty, in art. 86 para. 2, provides that competition law rules are applicable on commercial companies that provide entrusted services in general economic interest only if application of such rules does not hamper, legally or factually, fulfillment of special tasks that have been transferred to them. In case a fulfillment of their tasks is possible without breaching the contract, health insurance providers are bound by provisions of the EC Treaty. Furthermore, a possibility to ensure the fulfillment of tasks without breaching a contract might be created by revision of laws on national level. Art. 86 para. 2 is not applicable if a health insurance provider is not capable of fulfilling, or not prepared to fulfill alone in satisfactory manner the entrusted tasks.
