2 - Health care and the EU: the law and policy patchwork  pp. 84-133

Health care and the EU: the law and policy patchwork

By Tamara Hervey and Bart Vanhercke

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Governments of European welfare states face an uncomfortable predicament. To transfer their welfare-state obligations to the EU level would jeopardize the political basis of their legitimacy. However, since at least the mid-1980s, the processes of European integration, to which those governments are irreversibly committed, have become increasingly pervasive. As a result, European integration creates a problem-solving gap in that ‘member governments have lost more control over national welfare policies, in the face of the pressures of integrated markets, than the EU has gained de facto in transferred authority’, substantial though the latter may be.

At face value, health care seems to be a case in point to illustrate this predicament. Indeed, generally speaking, with some limited exceptions, the European Union has no legal competence to adopt EU law in the field of health care, this being a matter of national competence according to the EU's founding or ‘constitutional’ document, the EC Treaty (to be replaced by the Treaty of Lisbon 4 once it has been ratified by all the Member States). Unsurprisingly, both Member States and EU institutions are heavily bound in their ability and willingness (on account of national interests, political sensitivities and the huge diversity of health care systems in an EU of 27) to issue legislation in this area. Those who are (politically) responsible for health care at the domestic level are faced with a second problem: since the very beginnings of what is now the European Union, other areas of EU law have had unintended effects in health care contexts.