Experts: legal barriers limit the trade in SPZOZ receivables
Experts from the regulation consultancy team of the law company Domański Zakrzewski Palinka (DZP) developed a report on the barriers in the trade in SPZOZ (independent public health care institutions) receivables. The rules for management of the SPZOZ property is regulated by the act on health care institutions, which introduces far-reaching restrictions on the trade in receivables. They make it impossible to freely dispose of the receivables by the suppliers of health care institutions which are in debt and they have a negative impact on the certainty of the trade. Experts remind that the debt of the Polish hospitals exceeded the amount of PLN 11 billion. The scale of the problem is reflected in specific numbers: in Q3 of 2016, out of 2 billion worth of due payables of SPZOZ as many as 91% of liabilities were debts of hospitals towards suppliers of services and goods.
The current provisions of Article 54 clauses 5 and 6 of the act on health care institutions conditions the possibility to change the creditor of SPZOZ from the consent of its establishing entity. The actions undertaken without a previous consent of the establishing entity are ineffective according to the law. For SPZOZ suppliers, which are often Polish small and medium enterprises, it means serious consequences. They include i.a. far-reaching restrictions of disposal of the receivables towards the institutions. Apart from that, the suppliers are forced to wait for payment by the hospital even up to 230 days.
Thus, we may observe the trend that the hospitals which have problems with financial liquidity, postpone the payments due to their contractors. The current provisions of Article 54 clauses 5 and 6 of the act on health care institutions makes it impossible to restructure their debts by using the means of the private sector, experts comment.
“The resulting restrictions on the constitutional freedom of establishment and the related freedom of contract should be deemed disproportionate and unjustified. The regulation gives rise to the doubts as regards compliance with the law of the European Union, and in comparison with the regulations applicable in other EU member states is seems too restrictive. In our opinion it is necessary to change the problematic provisions of the act on health care institutions. The amendment may take two paths – either towards enabling an objective assessment of the premises for expressing consent for a change of a creditor by the establishing entity, or through awarding the establishing entity with the right of pre-emption to the receivables and introduction of the rules that disposal of receivables for a third party entity may occur only if the establishing entity does not exercise the right of pre-emption vested in it”, the authors of the report conclude.
Such actions lead to limitation of competitiveness on the market of drug suppliers, thus violating the rules of fair competition which are of fundamental meaning for social market economy.
The article of Grzegorz Matejczuk published in Zamówienia Publiczne: “Consortia in public procurement procedures of health care institutions” also commented on the topic.