Health policy and European law: Closing the gaps

Abstract

Health policy in the European Union has, at its centre, a fundamental contradiction. On the one hand, recent Treaties, which are the definitive statements on the scope of European law, state explicitly that health care is a responsibility for Member States. On the other hand, as health systems involve interactions with people, goods and services, all of whose freedom to move across borders is guaranteed by the same Treaty, it is increasingly apparent that many of their activities are subject to European law. Moreover, there is now compelling evidence that health care makes an important contribution to overall population health. The goals of the European Union are both economic and social and, since the Treaty of Maastricht, it has been required to ‘contribute to the attainment of a high level of health protection’. It is not possible to do this without ensuring that health systems are providing effective care to their populations. Another issue is that the European Union has, as one of its fundamental principles, an imperative to promote the free movement of people. The twin challenges of ensuring that health systems promote a high level of health and that they facilitate the mobility of Europe’s citizens pose certain problems. Reflecting the societal preferences of their citizens, member states have chosen different ways to organize their health care systems. These choices reflect many factors. The ways in which varying goals are achieved reflects differing views about the legitimacy of regulation, incentives, and other levers to bring about change. Health care systems across states reflect national culture, institutional frameworks, and contemporary political choices, and there is no obvious reason to seek to harmonize systems. Because of this, the application of a uniform legal framework, as set out in the EU Treaties, will inevitably be problematic. But at the same time, health care cannot be ignored by European legislators. Many of the things upon which Europe depends, such as pharmaceuticals or technology, are internationally traded and health care workers also have free movement between states. So there is a paradox. Health systems in Europe are diverse, yet they are also interdependent. In themselves, they are exempt from European law, yet almost everything they do, and those elements that are essential for them to function, are governed by it. ARTICLE IN PRESS