Panel 414: EU Health Governance I: Legal Perspectives on Health, Rights and the Internal Market
EU Health Governance I: Legal Perspectives on Health, Rights and the Internal Market
Article 6 TFEU restricts the EU’s role in public health to one of support, coordination and complementarity, whilst Article 168(7) TFEU acts as a dedicated subsidiarity clause, reiterating national governments’ sole responsibility for health system organisation and financing. Yet, because health goods, services, personnel and threats cross borders, health expenditure constitutes a significant part of national fiscal policy and the health sector is a crucial site of economic growth, the EU’s role in this sensitive area is now extensive. This panel, the first of two joined panels on EU Health Governance, focuses on the interaction of health, rights and the internal market. Papers explore the impact of EU regulation on specific states and policy sectors – addressing the implementation of the Patients’ Rights Directive in Austria and the impact of free movement on surrogacy in the EU – and the balance between national and EU competences – examining how competition law operates in the health sector and how the Charter of Fundamental Rights is increasing member states’ freedom to act in defence of health values. In doing so, they collectively reflect on the role of EU law in the integration of health, the limits of EU health governance and the role of the European Court in producing rights for EU citizens.
Presentations of the Symposium
Competition in EU Health Law and Policy – What Role for Member States?
This paper examines possible limits of Article 168(7) TFEU in circumscribing EU-level intervention in Member States’ responsibilities regarding organisation and delivery of health services by reference to the development of competition reforms in healthcare. While Article 168(7) TFEU suggests that Member States are free to experiment with competition reforms to varying degrees, the incorporation of public/private delivery of healthcare services is likely to trigger application of EU competition rules. This suggests that EU-level intervention is at least desirable to avoid divergent interpretation of EU competition law, effectively creating “Euro-national competition rules for healthcare” (Van de Gronden and Szyszczak 2014). EU-level intervention regarding competition in healthcare appears curiously fragmented, and includes a DGSANTE Expert Panel 2015 report on competition among healthcare providers (as distinct from purchasers), and clarification by DGCOMP of limited exceptions for healthcare in the 2012 Services of General Economic Interest package. The approach of the EU courts in cases such as Ambulanz Glöckner, AOK Bundesverband and FENIN led to a distinction being drawn between healthcare provision being subject to competition law, and healthcare purchasing activities exempt. However, the recent DZP/UZP case established that Slovak health insurers are subject to competition law, which perhaps marks a significant change in approach. A further dimension emerges with the European Semester, notably the Commission’s Country-Specific Recommendations (CSRs) with varying prompts to specific Member States which can be linked to competition reform, inter alia, to remove restrictions on healthcare professions (France 2015) and increase competition (Italy 2016). The fundamental tension between solidarity (universal coverage) and competition (with an inference of “winners and losers”) which accompanies national competition reforms is also evident at EU level in CSRs to increase universal insurance coverage (Bulgaria 2017) and to improve cost-effectiveness and equal access (Finland 2018). It is increasingly considered that healthcare-related CSRs are proving influential (Azzopardi-Muscat et al. 2015), even if the broad ambitions they articulate mean that implementation may be slow and difficult to monitor. However, linking CSRs to engage with competition reforms in healthcare with the European Semester framework suggests two important considerations. Firstly, that the Member States which receive CSRs are less “free” under Article 168(7) TFEU to experiment with healthcare system organisation than those which do not. Secondly, that insights at Member State level may result in a more coherent approach at EU level to competition in healthcare, as well as formulating more specific and achievable CSRs.
Health and the Market: De-centralisation and Protection?
The single market is central to the substance of the EU’s policies, and to the evolving constitutional relationship between the EU and its Member States. It is also commonly critiqued for placing market values axiomatically above health values. The CFREU is one document with the potential to correct this, introducing a ‘right to preventative health care’ and committing to a high level of human health in the implementation of all Union policies. It is significant that health protection is framed in the language of fundamental rights – by elevating this guarantee to the level of basic human rights, can the Charter noticeably alter the balance between market rights and health rights? The origins of this paper lie in my doctoral thesis, an interdisciplinary analysis of the national policy effects of the Charter. Unexpectedly I found that Article 35 CFREU, by elevating health to the status of a fundamental right, resulted in the CJEU giving more leeway to Member States. This occurred when the Court balanced health rights and market values in the context of justifying restrictions on internal market freedoms. The more de-centralised approach of the ECJ towards fundamental rights resulted in Member States views on their own health policies being treated with greater significance than previously. This paper further explores that dynamic using an interdisciplinary analysis of the ECJ’s case law - is this a trend present across internal market law? How should we understand any increased freedom for Member States to act, based on existing theoretical models of relationships between Member States and the EU? The empirical evidence used in the paper will be an assessment of ECJ cases in which Article 35 CFREU was cited. Additionally, previous work has identified likely areas of change where there is a clash between health as a fundamental right and legislation that sets a centralised EU-level definition Therefore, the paper will also analyse any judgments on health legislation which follows this pattern.
Patients as EU Citizens? The EU Patients’ Rights and Cross-border Health Care Directive and its Impact on the Austrian Health Care System
After a series of rulings by the European Court of Justice, the EU directive on patients’ rights in cross-border health care has been adopted to regulate access and reimbursement of planned health care in another EEA member state. Showing that European integration affects health systems traditionally considered as national sovereignty, recent studies have analysed the directive’s impact on national welfare states for several EU countries. So far, however, little is known about its implications in Austria. The country case is particularly interesting as Austria, along with Portugal, Poland and Romania, voted against the directive, even though it had already implemented major elements of the directive into national law. This paper investigates the impact of EU policy making, and more specifically the patients’ rights directive, on the Austrian health care system. Based on a systematic document analysis and semi-structured expert interviews, the study discusses the reasons of Austria’s initial denial of the directive and the country’s general role between proponent and opponent of EU regulations on cross-border health care. We particularly address perceived tensions in its application, both from a patient and health care systems’ perspective, and analyse the Austrian position and experience through the lens of key stakeholders. By providing evidence from Austria, this paper offers new insights into the role of EU policy making in shaping national health care systems and contributes to a growing but still limited body of research.