The History and Scope of EU Health Law and Policy

Abstract

This paper looks at the origins and limits of EU health law and policy. The main questions asked are whether EU health law is expanding and how; whether it operates within fixed limits; and whether healthcare is a special case in EU integration. Special attention is paid to the emergence of a specific legal basis in Article 168 TFEU alongside the general internal market provisions of the EU, and its sector-specific subsidiarity provision which suggests healthcare was at least intended to be a special case: a policy largely reserved to the national level. In practice however the EU competence in this field is expanding not only as a matter of negative integration (striking down conflicting national rules to promote the internal market), but also in terms of cooperation between the Member States. Finally the recent impact of general financial curbs on the welfare State (such as are imposed in the context of the European semester) show that in spite of national efforts to retain control over healthcare, such control is in fact steadily eroded. The result is less the emergence of a unified EU policy than a complex system of partial overlapping national and EU competences that may come both come into conflict and complement each other.