National Healthcare Planning and the Internal Market: A Conceptual View on the Impact of EU Law on Member States' Regulatory Autonomy in the Field of Healthcare
| DOI | 10.1177/138826271501700103 |
| Published date | 01 March 2015 |
| Author | Andreas Walus |
| Date | 01 March 2015 |
| Subject Matter | Article |
THE INTERNAL MARKET: A CONCEPTUAL
VIEW ON THE IMPACT OF EU LAW ON
MEMBER STATES’ REGULATORY AUTONOMY
IN THE FIELD OF HEALTHCARE
Andreas Walus*
Abstract
Public healthcare is a fundamental task of welfare states. Its real character is ambiguous
though as, on the one hand, healthcare is a cornerstone of social security while, on the
other, it is an enormous economic sector. At the same time, maintenance of healthcare
services constitutes one of the biggest fi nancial burdens on public budgets and will
remain so for the foreseeable future.
In order to cope with this challenging subject matter, Member States have evolved a
wealth of healthcare regulations. Considering the potential cross-border economic
activity in the healthcare sector by patients and healthcare providers, the question of the
compatibility of national healthcare planning with European Union Law arises. Th
is
article analyses how Member States’ healthcare planning is both limited and preserved
by European primary law and by the CJEU’s case law. Th
e study reveals a surprising
result.
Keywords: discretionary planning power; fi nancial balance of social security systems;
healthcare; justifi ability; regulatory autonomy
1. INTRODUCTION
Th
e organisation of public healthcare is one of the most delicate state tasks of current
times. Healthcare is subject to various controversial factors a
nd consequently
causes serious disputes requiring critical decisions. Th
e enormous size of the public
*
Dr. Andreas Walus, LL.M. is a lawyer with Gleiss Lutz Rechtsanwälte in Berlin. Address:
Friedrichstraße 71, 10117 Berlin, Germany; phone +49 30 800979–148, e-mail: andreas.walus@
gleisslutz.com.
52
Intersentia
National Healthcare Planning and the Internal Market
healthcare budget draws attention to the weighty fi nancial dimension of healthcare.1
At the same time, healthcare’s role as a cornerstone of social security also needs
attention. Th
e provision of suffi
cient and adequate healthcare is not only a question
of political opportunism. Rather, healthcare constitutes a fundamental task of welfare
states and aff ects fundamental rights including the right to life and the right to
personal integrity.2 Th
erefore, the provision of healthcare is a constitutional issue. Th
e
social and fi nancial implications of healthcare result in the organisation of healthcare
becoming a highly sensitive political issue. Th
is is further confounded by the fact that
healthcare is also an important sector of the economy; in fact, healthcare has become
one of the largest economic markets of today. Th
e factors that infl uence healthcare
organisation illustrate the fact that healthcare is a key policy area in the modern state
and will remain so in the foreseeable future.
Member States have developed a wealth of healthcare regulations in order to
cope with social necessities and fi nancial burdens. For instance, national provisions
concern essential organisational decisions including: the type of healthcare scheme
(benefi ts in kind, reimbursement schemes or a national healthcare system), systems
of agreements between public sickness funds and healthcare providers, quantitative
and territorial restrictions, waiting lists, limitations on remuneration rates, prior
authorisation requirements for cross-border healthcare treatment etc.3 Considering
the diff erent purposes of health care measures in diff erent Member States, the
term healthcare planning will be used in a broad sense to cover not only measures
of organisation (healthcare planning in the strict sense) but also measures which
regulate access to, and provision of, healthcare (healthcare planning in the broader
sense).
Notwithstanding the fact that healthcare planning may be regarded as an eff ective
instrument of state regulation in order to reconcile social and fi nancial demands, it
is not surprising that regulatory measures of healthcare planning inevitably cause
confl icts with economic activity due to their market regulation character. Likewise,
from a legal point of view, national healthcare planning causes legal confl icts between
state regulation and legal freedoms of economic activity. Considering potential cross-
border economic activity in the healthcare sector of patients and healthcare providers,
an obvious question arises as to the compatibility of national healthcare planning
with European Union law. Th
erefore, the study at hand will analyse how national
healthcare planning is infl uenced in particular by rules of the internal market.4 Th
e
1
According to the German Federal Statistical Offi
ce, total health expenses amounted to 300 billion
euro in 2012, which is double the amount spent in 1992. Public sickness funds’ expenditure
amounted to 172 billion euro in 2012 and is rising by 9 billion euro annually; see www.destatis.de/
EN/FactsFigures/SocietyState/Health/HealthExpenditure/HealthExpenditure.htm.
2
See, on constitutional health care provisions, Hatzopoulos (2008–2009); see also, Abbing (2010:
217 et seq.).
3
See Baeten and Palm (2011).
4
See, on the relationship between EU Competition law as well as Procurement law and national
healthcare law, Gronden (2008–2009); Hatzopoulos (2008–2009).
European Journal of Social Security, Volume 17 (2015), No. 1
53
Andreas Walus
core question of research targets Member States’ scope of action: How do the internal
market rules aff ect Member States’ regulatory autonomy in the fi eld of healthcare
planning? In order to provide a grounded analysis of the relationship of national
healthcare planning and EU law from the point of view of Member States’ regulatory
autonomy, the course of examination is based on a two-step methodology. As a
fi rst step, the impact of EU law on healthcare planning is examined from a negative
perspective. Here, the central issue is how EU law confi nes the scope of Member States’
healthcare planning, the key question being, ‘how does primary and secondary EU
law limit national regulatory measures of healthcare?’ Th
is interventionist perspective
facilitates an examination of the restrictions for Member States deriving from EU
law. Its ‘negative’ approach is related to Member States’ regulatory autonomy; thus it
does not imply that limiting the impact on national law of EU law is considered to be
‘negative’ in the sense of ‘undesirable’. As a second step, it examines what regulatory
freedom and scope for further development are given to Member States by EU law. In
other words, by pursuing a positive perspective, the analysis focuses on Member States’
freedom of regulatory action in light of EU law. Th
is two-step method allows for a
diff erentiated and conceptual view of the impact of EU law on national law and reveals
both the limitations to, and options involved in, Member States’ healthcare planning.
Th
is method needs to be distinguished from the common approach of ‘negative and
positive integration’. While the latter measures EU law according to its eff ects on
eliminating national restraints or developing common European policies, the two-
step method used here facilitates an understanding of the ‘negative perspective’, in the
sense of restrictions to national law; and also the ‘positive perspective’, in the sense of
the autonomy that rests with the Member States due to explicit or implied provisions
of European Union law.5 Nevertheless, the two-step method of combining negative
and positive perspectives may also contribute to demonstrating how instruments of
negative and positive harmonisation take eff ect in national legal orders. Th
e method
at hand may show how the regulatory and deregulatory infl uences of EU law have
eff ects on Member States’ legislation from a national point of view. To this extent, the
method of negative and positive perspectives correlates with the positive and negative
functions of harmonisation.
By applying this methodology answers may be found to relevant questions such as
how confl icts of opposing interests of Member States and the EU may be reconciled.
Since Member States may feel compelled to restrict economic activity in the healthcare
sector in order to limit their healthcare spending, the European interest in cross-
border freedoms comes to the fore. Indeed, surveys reveal that in today’s attempts of
many Member States to cope with their critical fi nancial situations, radical reforms
of their healthcare systems fall within the scope of crisis instruments.6 Th
e two-step
method applied in this article may also reveal a way to reconcile partly antagonistic
5
See, on negative and positive integration in the fi eld of social security, Keune (2012); Krajewski
(2010).
6
See European Hospital and Healthcare Federation (2011).
54
Intersentia
National Healthcare Planning and the Internal Market
powers of national and European law. Th
e growing debate about ‘the last word’ on
social security policies in general, and on healthcare policies in particular, may fi nd a
solution. It may become clear that a reasonable infl uence of EU law on national social
security systems is possible without a full ‘Europeanisation’ of healthcare.
2.
LIMITATION OF MEMBER STATES’ HEALTHCARE
PLANNING BY EU LAW
2.1. THE PRINCIPAL LEGISLATORS AND THEIR COMPLIANCE
WITH EU LAW
As a fi rst step, the study at hand deals, in general terms, with the limiting impact
of the rules of the internal market on national healthcare planning. Th
is focus on
...
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