Member state interests and european union law: The case of health policy and health systems

Abstract

In matters of health policy, the Member States enjoy extensive retained competences and are prepared to act in the protection of their prerogatives and discretion. Their principal interest is to protect from EU intervention their ability to develop, operate and finance national health systems as dictated by domestic political, social and economic factors. As demonstrated by the example of cross-border health care, the Member States are acutely aware of the limitations which may follow from EU law—specifically, the fundamental freedoms—for the exercise of their health policy competences, which provides an incentive for them to legislate on the matter clarifying and consolidating the boundaries between EU obligations and Member State discretion. In contrast, EU membership has also given opportunities for the Member States to realise interests in the health policy domain which require a collective effort from the affected—interdependent—States. This led to the Member States conferring powers and functions to the Union and its institutions to develop cross-border policies and introduce cross-border obligations. In the wake of the financial and economic crisis, the Member States were also confronted with a new form of intervention by the Union—under the framework of common macroeconomic and fiscal governance—where, as dictated by the common interests, national health systems, health care budgets and health care reform are subject to external monitoring and rather substantive external constraints.