When developing a structural model for a prospective national health platform, it seems reasonable to assume, at least at first, that some kind of state-run service would be the most ideal provider. We should not forget, however, that the provision of information by the state – which we define as the communication of a range of information, warnings and recommendations – is subject to specific legal standards and guidelines. In the following, we examine the extent to which information can and should be provided by the state, if at all, and under what circumstances it is even possible and/or advisable to operate a national health platform in the form of a state-run information service.

The challenge

All government action – especially any action relating to fundamental rights – is based on the assumption that it have some kind of legal justification that can be verified retroactively by a court of law. This assumption itself is anchored in the principle of the rule of law, which is a key element of the Grundgesetz, Germany’s constitution. Among other things, Article 20 (3) of the Grundgesetz stipulates that “the executive [shall be bound by] law and justice.” Every state action that has the potential to impact the fundamental rights of third parties must therefore be examined to determine its legal legitimacy and justification.

The provision of information by a state authority must be seen as a form of “state action,” given that the action is aimed at informing the general public. The minimum prerequisite can thus be drawn from the principle of the rule of law, which stipulates that the state authority act within the scope of the task assigned to it. In this regard, the provision of information to the public can be legitimized, at least in principle, as an annex to the government’s performance of tasks (Schoch, NVwZ 2011). However, in and of itself, a general allocation of the task of developing and overseeing a government information service is insufficient to secure the legal basis of the prospective platform.

Background

One area in which state action clearly requires legitimization is when the government issues official consumer product warnings as part of its efforts to provide consumer-protection information (Voßkuhle and Kaiser, JuS 2018). These warnings are typically targeted at specific products or providers, which can impinge on the business operations of the manufacturers and/or providers involved. In such instances, the affected companies have the right to invoke their constitutionally protected freedom to pursue their profession (Article 12, Grundgesetz) as well as safeguard their personal rights (such as the right to self-determination and self-preservation).

In dogmatic terms – that is, as far as Germany’s Federal Constitutional Court is concerned – the state’s action in providing information does not constitute an encroachment carried out in the form of a legal act, at least not in the traditional sense of the term. Still, the impact of the provision of such information is very similar to that of an encroachment in the traditional sense. It is therefore reasonable to interpret such state action as being the equivalent to an encroachment (Voßkuhle and Kaiser, JuS 2018).

According to criteria set forth by German’s Federal Constitutional Court, it will be necessary to determine whether the provision of information by the government has an impact on market competition.

“When examining the broader collection of information by government agencies, it is essential to assess the extent to which the state provider competes with private-sector entities.”

Prof. Dr. Laura Schulte

In this regard, Germany’s Federal Constitutional Court has laid down the following minimum prerequisites which must be met to ensure the legality of state-run information activities: (1) there must be an identifiable state task to be carried out; (2) the rules of order, procedure and responsibility must be adhered to in the fulfillment of the task;  (3) the information must be factually accurate and its content truthful; and (4) as a whole, the act of providing the information must be appropriate and in proportion to the task.

And, even if government agencies comply with each and every one of these laws, it is still possible for markets to be impacted by their actions. Indeed, a state often has other means at its disposal when seeking to position itself in front of the general public; for example, it can draw on public funds to finance its efforts. For this reason, the public often considers information provided by state agencies to have greater relevance and credibility than information disseminated by third parties. If a government agency is seen as engaging in a private-sector action, the first step is to determine whether there is any justification for this action and whether their action results in any impact on competitors. It is also important to determine whether the information disseminated to the public comes from the public authority itself or from a third party (see also: Ownership: Public or private?)

Conclusion

Given the statements made so far, and especially considering the goal of establishing a platform model firmly rooted in the law, the idea of a national health platform operated by the state must be viewed critically. Although the project is by no means focused on the issuance of product warnings and other direct disadvantages suffered by actors, it is nevertheless true that other providers of digital health information and services could be impacted, if only indirectly.

It is therefore advisable to advocate for a structural approach that does not involve the direct provision of information by a state-run agency. It should also be noted that the partial funding of a national health platform by the government does not automatically imply that responsibility for the platform must also be in government hands. Instead, an open structural model, managed by civil society actors, could serve as an information “hub” and serve as a foundation for additional services.

To prevent excessive limitations being placed on the activities of private-sector actors, it is advisable to have a platform that is not administered by the state. Efforts should also be made to ensure that companies operating on the market are not excluded or put at a disadvantage.

(Published on 27.09.2023. The statements in this article refer exclusively to the legal situation in Germany. They represent a guideline and not individual legal advice that goes beyond the Trusted Health Ecosystems project.)

Bibliography

Schoch, NVwZ 2011, 193 (196) with reference to OVG Hamburg, NVwZ-RR 2008, 241.

Voßkuhle and Kaiser, JuS 2018, 343 (344) with reference to BVerfG, NJW 2002, 2621 – Glykolwei.

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