Publication Series: Health Care and the Fate of Social Europe

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New open-access JHPPL special issue!!

The Health Law and Policy Network has published an open-access special issue of papers entitled Health Care and the Fate of Social Europe with the Journal of Health Politics, Policy and Law. This collection of articles was originally workshopped at our event in Copenhagen. In this special issue, our network of EU health policy scholars explore key issues and intersections between EU health policy, political institutions and actor, and social Europe. Articles in this special issue include:

Introduction: Health Care and the Fate of Social Europe
By Katherine Fierlbeck

What Is EU Public Health and Why? Explaining the Scope and Organization of Public Health in the European Union
By Scott L. Greer and Holly Jarman

Abstract: Public health is notoriously difficult to define, and that is the case for public health in the European Union as much as other political systems. In this article, the authors try to identify the actual scope and meaning of public health as it is institutionalized in the EU political system. Using a mixture of historical policy and legal analysis, the authors show how the evolution of the institutional space called public health in the EU has been shaped by the EU's distinctive constitutional nature, its focus on regulation, and the legacy of its focus on market making as well as the preferences of its political leaders. The European Union does have an increasingly large space named “public health,” in which health ministers, the health directorate-general, and invocation of its public health treaty article 168 can be found, as well as a much broader and older area of activities justified by the need to manage adverse health consequences of market-making policies in other areas such as labor standards and agriculture. The COVID-19 crisis of 2020 not only led to a strengthening of EU public health but also showed that the EU is one of the many political systems in which the legal and bureaucratic domain of public health is far smaller than the actual issues affecting the public's health.

Applicability of European Union Competition Law to Health Care Providers: The Dividing Line between Economic and Noneconomic Activities
By Bruno Nikolić

Abstract: Ever-increasing health spending, which, according to future projections, continues to outpace economic growth, will further endanger the financial sustainability of health systems. In a quest to improve the efficacy and efficiency of the health system and thus strengthen its financial sustainability, member states are employing market-based mechanisms to finance, manage, and provide health care. However, the introduction of elements of competition is constrained by the application of EU competition law, which raises significant concerns regarding the applicability of competition law and its limits in the field of health care. Due to the lack of a clear definition in EU legislation, the applicability and scope of competition law are determined on a case-by-case basis, which reveals an inconsistent approach by the European Commission and the CJEU regarding the application of competition law to health care providers and has created legal uncertainty. The aim of this article is to analyze relevant decisions by the commission and the CJEU case law in the pursuit of “boundaries” that may trigger the applicability of competition law with regard to health care providers. Based on the findings of the analysis, the article proposes a set of principles or guidelines for determining whether a health care provider should be considered as an undertaking and, as such, subject to EU competition law.

Termites of Solidarity in the House of Austerity: Undermining Fiscal Governance in the European Union
By Scott L. Greer and Eleanor Brooks

Abstract: European Union (EU) fiscal governance, especially the European Semester, is an ambitious new governance architecture involving surveillance and discipline, across both Eurozone and non-Eurozone member state policies, in pursuit of fiscal rigor. It is the most recent of several attempts to expand EU powers over member state policy with the goal of austere budgeting, and one that has led to remarkable claims of authority by the EU over member state health policies as detailed as medical school admissions and the role of primary care. It is expected that it would be resisted not just by those who object to an EU role in the organization and delivery of health care but also by those who object to a particular austere approach to health policy. How well is it working? Using two waves of interviews and documentary analysis, and health as a policy case study, the authors document three key techniques that opponents use to undermine the semester's governance architecture: broadening goals, expanding the scope of conflict, and disputing and nuancing indicators. The result is that opponents of a narrow fiscal governance agenda are again successfully undermining the narrow focus of the semester.

Networked Health Care Governance in the European Union
By Dorte Sindbjerg Martinsen and Reini Schrama

Abstract: The European Union (EU) increasingly resorts to new forms of governance to establish unified health and welfare policies without member states having to transfer their sovereignty to a supranational level. European Administrative Networks are important instruments in the toolbox of new forms of governance, dealing with rulemaking, rule monitoring, and rule enforcement. Operating beyond, but not above, the state, European networks of national administrative units allow for interaction and exchange to coordinate national responses to increased interaction across their borders. The authors use social network analysis to uncover the pattern of interaction among national representatives in two central EU health care networks. Their analysis finds not only that the network in the area of pharmacovigilance has more competences, resources, and capacity to improve the enforcement of EU rules than the network regarding cross-border health care but also that the driving forces behind network interaction appear to differ quite a bit as well. While the supranational character becomes apparent in the former network, network interactions in the latter seem aimed at mitigating the impact of patient mobility rather than improving cross-border health care take up.

Health Technology Assessment and Health Care Reimbursement in the European Union: Permissive Dissensus and the Limits of Harmonization through the Backdoor
By Olga Löblová

Abstract: The principal effects of Brexit on health and health care will fall within the United Kingdom, and all forms of Brexit have overwhelmingly negative implications for health care and health within the UK. This article focuses on the external effects of Brexit (“Brexternalities”) for health and health care. The EU is a particularly powerful institutional and legal arrangement for managing economic and political externalities in health policy as in any other policy. Equally, when a state leaves the EU, the manner of leaving will result in better or worse management of relevant externalities. Brexternalities thus involve questions about policy legitimacy and accountability. Health Brexternalities do not fall equally in all EU countries. They are felt more distinctly in the context of those elements of health policy that are most closely entwined with the UK's health policy (e.g., on the island of Ireland, certain areas of Spain, and other parts of southern Europe). Some health Brexternalities, such as in medicine safety, will be imposed on the whole population of the EU. And some health Brexternalities, such as communicable disease control, will be felt globally.

The Effect of EU Integration on Health Care in Central and Eastern Europe
By Tomislav Sokol

Abstract: The effect of EU policy and its legal framework on health care in CEE member states has been complex. In relation to health care access and financial sustainability, it has been detrimental in certain parts of CEE. This has primarily been the result of economic/fiscal governance instruments of the EU and free-movement rules facilitating outflows of health care professionals. Although there has been a general improvement in access to health care since accession to the EU, the instruments the EU has used to handle the economic crisis have somewhat offset this improvement. Additionally, outflow of health care professionals has resulted in retention strategies such as salary increases and investments in medical infrastructure in some CEE member states, increasing the standard of health care. Still, differences between East and West in terms of important health indicators continue to exist, and EU instruments aimed at compensating this generally lack power to provide meaningful solutions. It seems more solidarity between member states is the only way to increase legitimacy of the European integration in CEE member states and thus prevent them from feeling as outsiders within the EU. Without such a development, CEE countries will continue to lag behind other parts of the Union.

Health “Brexternalities”: The Brexit Effect on Health and Health Care outside the United Kingdom
By Tamara Hervey, Ivanka Antova, Mark L. Flear, Jean V. McHale, Elizabeth Speakman, and Matthew Wood

Abstract: The principal effects of Brexit on health and health care will fall within the United Kingdom, and all forms of Brexit have overwhelmingly negative implications for health care and health within the UK. This article focuses on the external effects of Brexit (“Brexternalities”) for health and health care. The EU is a particularly powerful institutional and legal arrangement for managing economic and political externalities in health policy as in any other policy. Equally, when a state leaves the EU, the manner of leaving will result in better or worse management of relevant externalities. Brexternalities thus involve questions about policy legitimacy and accountability. Health Brexternalities do not fall equally in all EU countries. They are felt more distinctly in the context of those elements of health policy that are most closely entwined with the UK's health policy (e.g., on the island of Ireland, certain areas of Spain, and other parts of southern Europe). Some health Brexternalities, such as in medicine safety, will be imposed on the whole population of the EU. And some health Brexternalities, such as communicable disease control, will be felt globally.

Book Review: EU Health Law and Policy: The Expansion of EU Power in Public Health and Health Care
By Scott L. Greer

 

Note: The Journal of Health Politics, Policy and Law is edited by Jonathan Oberlander and Published by Duke University Press. This special issue was edited by Dr. Katherine Fierlbeck