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Towards a European Health Union: What Role for Member States?

Published online by Cambridge University Press:  09 September 2020

Mary GUY Open the ORCID record for Mary GUY [Opens in a new window]
Mary GUY*
Affiliation:
Law School, Lancaster University, UK; email: m.guy2@lancaster.ac.uk. The author wishes to thank the anonymous reviewer for their helpful comments.
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Abstract

Calls for a European Health Union apparently challenge long-standing beliefs that national healthcare system organisation is a Member State competence. Interaction between Member State and European Union (EU) levels therefore fundamentally requires reflection in the design, overall structure and legal basis of any European Health Union. Article 168(7) Treaty on the Functioning of the European Union (TFEU) provides the current version of the seemingly limited EU competence with regards to national healthcare system organisation and has received surprisingly little attention thus far. On the one hand, within the wider EU health competence ‘web’, Article 168(7) TFEU constrains EU adoption of measures incentivising Member States to use particular treatments or to increase intensive care units in response to COVID-19. On the other hand, Article 168(7) TFEU is challenged by the perceived influence of Country-Specific Recommendations issued in the context of the European Semester on national health policies. This opinion piece provides an original assessment of Article 168(7) TFEU to argue that Treaty change to redress the balance between EU and Member State competence regarding national healthcare systems may be uncalled for given both the flexibility afforded by the provision and the complexity and diversity of Member State healthcare systems.

Type
Articles
Information
European Journal of Risk Regulation , Volume 11 , Special Issue 4: Beyond COVID-19: Towards a European Health Union , December 2020 , pp. 757 - 765
Copyright
© The Author(s), 2020. Published by Cambridge University Press

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References

1 Group of the Progressive Alliance of Socialists & Democrats in the European Parliament, Letter from I García Pérez, H Fritzon and J Gutteland to President von der Leyen, President Michel and Prime Minister Plenković. 7 May 2020. <https://www.socialistsanddemocrats.eu/sites/default/files/2020-05/european-health-union-letter-200507.pdf>.

2 S&D, “A European Health Union – Increasing EU Competence in Health – Coping with COVID19 and Looking to the Future”, S&D Position Paper, 12 May 2020. <https://www.socialistsanddemocrats.eu/sites/default/files/2020-05/european_health_union_sd_position_30512.pdf>.

3 Connections with national healthcare laws and practices of Art 35 Charter of Fundamental Rights of the European Union are not considered here.

4 SL Greer, N Fahy, S Rozenblum, H Jarman, W Palm, HA Elliott and M Wismar, Everything You Always Wanted to Know about European Union Health Policies but Were Afraid to Ask (2nd ed, Geneva, WHO/European Observatory on Health Systems and Policies 2019) p 63.

5 Consistent with wider considerations of Union ability to take action in health-related matters. See further KP Purnhagen, A de Ruijter, ML Flear, TK Hervey and A Herwig, “More Competences than You Knew? The Web of Health Competence for European Union Action in Response to the COVID-19 Outbreak” (2020) 11 European Journal of Risk Regulation 297.

6 See further E Brooks and A de Ruijter, “Toward more comprehensive law and policy research” in EU Health Law and Policy – Shaping a Future Research Agenda, Health Economics, Policy and Law Special Issue, guest edited by E Brooks and M Guy (FirstView).

7 A de Ruijter and SL Greer, “EU health law and policy in and after the COVID-19 crisis” (2020) European Journal of Public Health ckaa088.

8 SL Greer, “How did the EU get the Coronavirus so wrong? And what can it do right next time?” The New York Times, 6 April 2020.

9 Disappointment having been expressed that the Union level could be a place to challenge national policies regarding COVID-19 intensive care guidelines potentially violating the rights of older and disabled patients. DMR Townend, B Wouters, R van de Pas and E Pilot, “What Is the Role of the European Union in the COVID-19 Pandemic?” (2020) Medicine and Law.

10 N Azzopardi-Muscat, T Clemens, D Stoner and H Brand, “EU Country-Specific Recommendations for health systems in the European Semester process: Trends, discourse and predictors” (2015) 119 Health Policy 375; S Garben, “Supporting Policies” in PJ Kuiper, F Ambtenbrink, D Curtin, B De Witte, A McDonnell and S Van den Bogaert (eds), The Law of the European Union (5th ed, Alphen aan den Rijn, Wolters Kluwer 2018) ch 38.

11 For example, Purnhagen et al, supra, note 5.

12 Art 168 TFEU has been depicted as a gate in a field around which sheep representing European Union policies as diverse as the internal market, agriculture and trade are free to roam. Greer et al, supra, note 4, p 176.

13 A Alemanno, “The European Response to COVID-19: From Regulatory Emulation to Regulatory Coordination?” (2020) 11 European Journal of Risk Regulation 307.

14 See, for example, Purnhagen et al, supra, note 5, and de Ruijter and Greer, supra, note 7.

15 L Hancher and W Sauter, EU Competition and Internal Market Law in the Health Care Sector (Oxford, Oxford University Press 2012) para 1.27, p 10.

16 Art 152(5) Treaty on the European Union (TEU), which reads, “Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care …”. It is noted that the original iteration of the Union public health Treaty competence – Art 129 EC – did not include a subsidiarity element. For background to this provision, see TK Hervey and JV McHale, Health Law and the European Union (Cambridge, Cambridge University Press 2004) pp 72–84, and Hervey and de Ruijter in this issue.

17 All four changes appear to have taken place in the period between October 2003 and October 2004, according to drafts issued as part of CIG 4/03 (pp 335–37 (Art III-179); 06.10.2003 and CIG 87 REV2/04 (p 217) (Art III-279), 29.10.2004. The wording was retained in drafts from other discussions, notably CIG 2007 Lisbon.

18 J-C Piris, The Lisbon Treaty – A Legal and Political Analysis (Cambridge, Cambridge University Press 2010) p 321.

19 JW van de Gronden and E Szyszczak, “Conclusions: Constructing a ‘Solid’ Multi-Layered Health Care Edifice” in JW van de Gronden, E Szyszczak, U Neergaard and M Krajewski (eds), Health Care and EU Law (Utrecht, TMC Asser Press 2011) p 486.

20 Garben, supra, note 10.

21 Whereby “them” equates to “Member States”, not “the management of health services and medical care”. Such ambiguity is arguably more evident in some language versions of Art 168(7) TFEU (English and French) than others (German and Dutch).

22 E Mossialos, G Permanand, R Baeten and T Hervey, “Health systems governance in Europe: the role of European Union law and policy” E Mossialos, G Permanand, R Baeten and TK Hervey (eds), Health Systems Governance in Europe – The Role of European Union Law and Policy (Cambridge, Cambridge University Press 2010) ch 1, p 1.

23 S Garben, “The Constitutional (Im)balance between ‘the Market’ and ‘the Social’ in the European Union” (2016) 13 European Constitutional Law Review 23.

24 F Amtenbrink, “The Metamorphosis of European Economic and Monetary Union” in A Armull and D Chalmers (eds), The Oxford Handbook of European Union Law (Oxford, Oxford University Press 2015) ch 28, p 744.

25 Including commitment from DGSANTE, “European Semester: Health reforms need to continue”. Health EU – Newsletter 236, June 2019. <https://ec.europa.eu/health/eunewsletter/236/newsletter_en>. For further on the actors involved, see Greer et al, supra, note 4, pp 155–56.

26 Azzopardi-Muscat et al, supra, note 10.

27 S Greer, H Jarman and R Baeten, “The New Political Economy of Health Care in the European Union: The Impact of Fiscal Governance” (2016) 46(2) International Journal of Health Services 262.

28 Garben, supra, note 10.

29 For an overview of the different mechanisms, see Greer et al, supra, note 4, pp 162–64.

30 For a visual representation of the European Semester timeline, see <https://ec.europa.eu/info/sites/info/files/2018-european-semester-timeline_en.pdf>.

31 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:32015H0818(15)&from=EN> CSR 4. Although not formulated as a CSR, these concerns had been articulated in 2012 as well. <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52012DC0313&from=EN>, para 15.

32 As a measure for reducing health expenditure, this CSR has also been considered to defy “what is known about the importance of supply-induced demand in healthcare”. See Greer et al, supra, note 4, p 165.

33 For an indication of the issues involved in developing competition reforms in national healthcare by reference to the Union competition law framework, see M Guy, Competition Policy in Healthcare – Frontiers in Insurance-Based and Taxation-Funded Systems (Cambridge, Intersentia 2019) ch 2.

34 As mentioned in Preamble 15 France CSR 2011 <https://ec.europa.eu/info/publications/2011-european-semester-country-specific-recommendations-commission-recommendations_en>.

35 For a discussion, see DGECFIN, “The Economic Adjustment Programme for Ireland”, Occasional Papers 76, February 2011, p 66. <https://ec.europa.eu/economy_finance/publications/occasional_paper/2011/pdf/ocp76_en.pdf>.

36 <https://eur-lex.europa.eu/legal-content/EN/TXT/PDF/?uri=CELEX:52019DC0507&from=EN>.

37 Already in evidence in the 2020 CSRs. <https://ec.europa.eu/info/publications/2020-european-semester-country-specific-recommendations-commission-recommendations_en>.

38 The latter apparently confined to the national level – for example, discussions among economists in the Netherlands of whether increased costs in responding to COVID-19 necessitate (or not) a fundamental system change away from the “managed competition” model formally introduced in 2006. P Jeurissen, E Adang, F Kruse and N Stadhouders, “Coronavirus kan de zorg structureel veranderen” 105(4784) ESB 168, and in response, M Varkevisser and E Schut, “Kosten corona geven geen aanleiding om zorgstelsel fundamenteel te hervormen” 105(4785) ESB 204.

39 See individual responses in the informative series Health Economics, Policy and Law, HEPL blog series, Country Responses to the Covid19 Pandemic. <https://www.cambridge.org/core/journals/health-economics-policy-and-law/hepl-blog-series-covid19-pandemic>.

40 A Reeves, “The EU and social determinants of health in a post-COVID world” (2020) European Journal of Public Health ckaa100.

41 For consideration of the effect of digitalisation on health policy more generally, see Brooks and de Ruijter, supra, note 6.

42 Alemanno, supra, note 13.

43 ibid.

44 Notably in connection with “incentive measures” and Art 168(5) TFEU. See Alemanno, supra, note 13, and Purnhagen et al, supra, note 5.

45 Purnhagen et al, supra, note 5.

46 For example, Dutch patients having access to intensive care unit beds in Germany. I Wallenburg, P Jeurissen, J-K Helderman and R Bal, “The Netherlands’ Response to the Coronavirus Pandemic – Update (May 2020)” <https://www.cambridge.org/core/blog/2020/04/06/the-netherlands-response-to-the-coronavirus-pandemic/>.

47 Addressing long-term health effects of COVID-19 may also merit consideration in this connection.

48 As was recently approved in the state aid case, Case SA.57897 Covid-19: E-Health at home 2.0.

49 This may also play a part in “direct” responses – for example, supporting COVID-19 testing efforts, as noted in the Czech Republic. O Löblová, “The Czech Republic’s Response to the Coronavirus Pandemic”, 22 May 2020. <https://www.cambridge.org/core/blog/2020/04/07/the-czech-republics-response-to-the-coronavirus-pandemic/>.

50 C Mateus, “Portugal’s Response to the Coronavirus Pandemic”, 18 May 2020. <https://www.cambridge.org/core/blog/2020/04/07/portugals-response-to-the-coronavirus-pandemic/>; S Thomas, “Ireland’s Response to the Coronavirus Pandemic”, 15 May 2020. <https://www.cambridge.org/core/blog/2020/04/06/irelands-response-to-the-coronavirus-pandemic/>.

51 Consolidated Version of the Treaty on European Union – Protocol (No. 26) on Services of General Interest. Official Journal 115, 09/05/2008 P. 0308 – 0308.

52 T Prosser, “EU competition law and public services” in E Mossialos, G Permanand, R Baeten and TK Hervey, Health Systems Governance in Europe: The Role of European Union Law and Policy (Cambridge, Cambridge University Press 2010) ch 7.

53 C 116 I/7. 8.4.2020. European Commission, Communication from the Commission, Temporary Framework for assessing antitrust issues related to business cooperation in response to situations of urgency stemming from the current COVID-19 outbreak (2020/C 116 I/02). European Competition Network (ECN), “Antitrust: Joint statement by the European Competition Network (ECN) on application of competition law during the Corona crisis”, March 2020. <https://ec.europa.eu/competition/ecn/202003_joint-statement_ecn_corona-crisis.pdf>. Communication from the Commission, Temporary Framework for State Aid Measures to Support the Economy in the current COVID-19 Outbreak. <https://ec.europa.eu/competition/state_aid/what_is_new/TF_consolidated_version_amended_3_april_8_may_and_29_june_2020_en.pdf>.

54 Indeed, the question of the future of state aid is considered by Stefan and Biondi in this issue.

55 de Ruijter and Greer, supra, note 7.

56 In reflection of recent Court of Justice case law, specifically Case C-74/16 Congregación de Escuelas Pías Provincia Betania, 27 June 2017, ECLI:EU:C:2017:496, which enabled the development of a “three-prong test” by van de Gronden based on solidarity to determine applicability of Union competition law. See JW van de Gronden, “Services of general interest and the concept of undertaking: does EU competition law apply?” (2018) 41 World Competition 197. This test has recently been analysed in the healthcare context for the first time – see JW van de Gronden and M Guy, “The role of EU competition law in healthcare and the ‘undertaking’ concept” (2020) Health Economics, Policy and Law, FirstView.

57 For example, in April 2020, Greece was considered a success story in terms of healthcare, but it is likely to be the worst-hit Member State in terms of the economic downturn of the pandemic. V Hatzopolous, “Taming the COVID-19, not the GDPR: the case of Greece” <https://blogdroiteuropeen.com/2020/07/04/taming-the-covid-19-not-the-gdpr-the-case-of-greece-by-vassilis-hatzopoulos/>.