Intro
In principle, establishing and developing a national health platform on the basis of an existing legal framework is a feasible option. However, given the innovative nature of the platform and the diversity of its anticipated tasks, it seems advisable to create a new legal structure, or perhaps even multiple ones, for its operational framework.
What factors should be weighed when selecting the appropriate legal structure?
When determining the legal framework for the national health platform, it is important to consider what features the platform should have. This is because German corporate law specifically provides for a wide variety of legal forms, each carrying its own set of advantages and drawbacks. In any case, it’s important to ensure the platform’s operational capability. Whatever the chosen legal form, it should grant the platform a legal personality, thus enabling it to bear rights and responsibilities.
It should also be aligned with the platform’s mission statement, which targets the common good, as opposed to purely profit-driven objectives. Here, too, the German legal context provides for legal structures that are more or less committed to this ethos.
Finally, and perhaps most importantly, the chosen legal form should provide flexibility. The platform is expected to take on evolving roles and tasks, some of which may not be clearly defined at its inception. Furthermore, the selected legal framework should facilitate collaboration between both private and government organizations within the platform.
Which organization could assume responsibility for the platform?
In principle, establishing and developing a national health platform on the basis of an existing legal framework is a feasible option. However, given the innovative nature of the platform and the diversity of its anticipated tasks, it seems advisable to create a new legal structure, or perhaps even multiple ones, for its operational framework.
What are the pros and cons of a private-law versus public-law form of governance?
Publicly governed legal structures are typically accessible only to governmental entities. In other words, not everyone can opt for such a legal framework but, rather, only entities at the federal, state or municipal levels of government. While public legal structures do come with certain privileges, including advantages in financing and decision-making processes, these privileges also entail certain drawbacks. Most notably, these kinds of legal structures tend to be less adaptable and flexible. This means that when such projects take on new responsibilities, adjustments must be made to their legal basis. Furthermore, public and private actors cannot easily collaborate under the umbrella of a publicly governed legal structure.
What recommendations can be derived from this for the organizational framework of a national healthcare platform?
It’s important to choose a legal form for the national health platform that provides for operational viability, that is, a form that grants the platform a legal personality. Publicly governed legal forms seem to be less suitable for such a platform. Instead, privately held legal structures, which confer legal personality, seem preferable. Another option might be to allocate different platform responsibilities or business domains to distinct entities or businesses, each of which adopts the appropriate legal form. These companies can then, in turn, be brought together under the common umbrella of a holding company.
Disclaimer
The statements made in this interview are relevant exclusively to the German legal context. They offer a framework for guidance and should not be interpreted as providing legal counsel beyond the scope of the Trusted Health Ecosystems project.
Expert
While completing her doctoral studies, Prof. Dr. Laura Schulte gained experience in the field of constitutional law as a research assistant. Her doctoral thesis focused on data protection law, and she conducted further research on this subject at various institutions, including the Queen Mary School of Law in London. From 2020 to 2023, she was employed as an attorney at BRANDI Rechtsanwälte in Bielefeld, specializing in IT and data protection law. Since August 2023, she has held the position of professor of business law at the Hochschule Bielefeld.
