Basic knowledge and the EHDS: the specialis-rule

Back to Basics: The Lex Specialis Rule and the EHDS

In the (Dutch) world of health law I come across them constantly: claims about how our legal system supposedly works that are simply incorrect. They obstruct an effective implementation of the EHDS. They appear to stem from the fact that the absolute basics of legal scholarship have been somewhat forgotten. Our legal system has, admittedly, rather outgrown itself. And the effect seems to be that people know a great deal about, say, the WGBO (the Dutch Medical Treatment Agreement Act) or the GDPR, but little about the basics: the general doctrines as set out in the classic handbooks.

Another possibility is that somebody was simply too busy during those first few weeks with the initiation rites at the student clubs, or with finding a room. Hence, by way of a refresher from a former professor, here is something from the first-year introductory course. The lex specialis rule is one of the three conflict rules, and there are three misconceptions about it.

• Lex superior derogat legi inferiori (a higher rule prevails over a lower one)
• Lex specialis derogat legi generali (a special rule prevails over a general one)
• Lex posterior derogat legi priori (a later rule prevails over an earlier one)

1. The lex specialis rule applies to two rules, not two statutes

Contrary to what the word lex suggests, the lex specialis rule is not about entire statutes or laws, but about specific norms. It does not mean that an entire special statute, law or regulation takes precedence over a general one. Tenant law for example does not set aside general contract law. Only a specific norm of tenant law can do that. For everything else, general contract law applies between landlords and tenants as well; for instance, that unforeseen circumstances (Article 6:258 of the Dutch Civil Code) can override the letter of the agreement. In the same way, in health law entire statutes do not set aside other statutes. The Dutch law on the medical treatment agreement (WGBO) therefore simply applies alongside the rest of contract law, and in the same way the EHDS simply applies alongside the rest of EU data law, in so far as there are no specific norms that conflict with one another.

2. Lex specialis is the second conflict rule, after lex superior

The second misunderstanding is that these conflict rules have no order of precedence. They most certainly do; they apply in the order set out above. The lex specialis rule therefore comes into play only where the first conflict rule does not resolve the matter: only where the two rules are of the same rank. Where a European, general rule provides one thing while a Dutch or Belgian special rule provides the opposite, the European rule prevails. The lex superior rule takes precedence over the lex specialis rule. This means that a special national rule cannot set aside a general European rule, unless that European rule itself expressly permits this. The Dutch WGBO therefore cannot by itself set aside the European GDPR. The WGBO can (and does) provide otherwise, because the GDPR itself allows this in Article 9(4). The EHDS, however, is of the same rank as the GDPR, so in a conflict between rules in those two, one cannot solve the conflict based on the first conflict rules and thus the specialis rule dictates that norms in the EHDS prevail, as special rules, over the more general norms in the GDPR.

3. Rules in conflict versus rules that are silent

The lex specialis rule moreover applies only where, in a concrete case, two norms lead to opposite outcomes; where the rules are in conflict with one another. This means that where a general rule provides that something is permitted while the special legislation is silent on the point, there is no conflict and one does not apply the lex specialis rule. The general rule then simply applies. For example: if the Open Data Directive (which is to be absorbed into the Data Regulation by the Digital Omnibus) provides that research data must be made FAIR, and the EHDS says nothing about this, then the Open Data Directive simply applies. If the Interoperable Europe Act provides something and the EHDS says nothing about it, then the IEA simply applies.

In summary

Personally, I find it rather funny that health law is considered so special that it can set aside the general doctrines. But I am not sure whether the gentlemen who founded our legal scholarship would be able to laugh about it. In any event, what matters for the EHDS, in connection with these three misconceptions, is this:

1.     The EHDS, as a (special) statute, does not set aside other statutes in their entirety. The rest of European data law therefore applies (in principle) in full within healthcare as well. The lex specialis rule, after all, concerns specific norms, not entire statutes.

2.     National rules (such as those in the WGBO) cannot set aside the EHDS, unless the EHDS itself provides that derogation is permitted.

3.     Where the EHDS is silent on a specific issue, the other norm that does determine an outcome simply applies — such as rules from cybersecurity law, open data law, or Interoperable Europe law.