Risk Equalisation in Health Insurance and the New Standard for Public Service Compensation in the Context of State Aid and Services of General Economic Interest Under EU Law

In its BUPA Case of February 2008 the Court of First Instance set a new standard for assessing whether public service compensation constitutes a state aid and/or is covered by the exception for services of general economic interest. At issue was risk equalisation between providers of private health insurance in Ireland. The alternative standard adopted in BUPA is less rigid than that in Altmark and therefore in principle to be welcomed also because it seems more suited to services provided in competition and therefore to new ways of providing public services. This means it contains elements of a new approach toward national attempts at reshaping the welfare state in EU law terms. However too much discretion was given to the national authorities and the Court of First Instance did not sufficiently address the conditions of competition in the relevant Irish markets in this case, making it on these counts a false start