The creep towards an EU health policy
By Honor Mahony
The creeping Europeanisation of health policy is slowly raising the question of what scope member states actually have left to act as well as throwing up profound implications for national healthcare systems and national politics.
Under current EU law, Brussels has powers in the public health sphere. It is charged with supporting member states in "improving public health, preventing human illness and obviating sources of danger to human health."
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It also has powers in consumer protection tasked with "contribut[ing] to protecting the health, safety and economic interests of consumers."
In both areas its role is supposed to be complementary or contributory to national law but increasingly the EU is taking a much more robust approach.
There are two main reasons for this - a series of public health crises recently, including HIV/AIDS, SARS and bird flu - and the justification of increased health action using the internal market as a buffer.
"If the EU wants to address health policies, it tries to feed it through in areas where it does have powers like food safety and consumer protection," said one Brussels-based health issues lobbyist.
And, in fact, health policy cuts across an array of policy areas where the European Commission does have power, including the environment, the services sector and single market policy.
A recent example of Brussels clashing with member states on the issue was when Germany complained that the EU was over-stepping its powers, and entering health policy, by trying to ban tobacco advertising in the EU. The case is still before the European Court of Justice in Luxembourg (EJC).
The legal engine
And while it is clear that in areas like bioethics and the pharmaceutical sector the EU is pushing for a stronger role in public health, it is the ECJ that is pushing EU powers forward in the much more politically sensitive health care area.
Decisions emanating from the Court have made it clear that internal market rules apply even in areas where member states have sole power.
The Kohll and Decker cases in 1998 were landmark rulings in the area. Both cases found in favour of the claimants who were asking for reimbursement in member states other than their own for health care treatment. And in both cases the claimants case were upheld under the free movement of goods and services law.
And earlier in May this year, the court handed down another crucial decision when it ruled that British national Yvonne Watts was entitled to seek treatment abroad and then to have it paid for by the UK national healthcare system, if the waiting time for treatment exceeded an acceptable – but undefined – limit.
That decision coupled with the others is likely to be interpreted as another step on the way to creating a single European healthcare market.
"The two 1998 Kohll and Decker rulings of the European Court of Justice…have served to underline the point that member states' health systems, and in particular the delivery of health care, do not lie outside the jurisdiction of community law" said a recent European Commission high level group report on health.
Coming to a legal head
EU health analysts argue that Brussels is pushing ahead much more quickly than member states are prepared to tolerate.
"I have talked to many people in ministries here [in Germany] and they don't know what's going on in Brussels" says health expert Wolfram Lamping from Hanover university adding "they argue the ‘the EU has no mandate, so we are well-protected'."
Wolfgang Schulz-Weidner, a legal expert at the EU social insurance platform, points out that until now the court has been very enthusiastic about saying what member states cannot do but has avoided telling member states what they "should" do.
Member states are slowly getting less and less scope to do what they want in healthcare, says the German expert.
"One day they are going to sit up and say, ‘well what can we do?' and ask the commission to define it – then you will have a European health policy," he says.
Mr Schulz-Weidner says that there are already major steps being taken towards an EU health policy.
He points to so-called ‘reference centres', currently being prepared to be put to a sort of EU public procurement procedure. These centres of excellence could for instance specialise in certain health services – such as rare disease and special operations - that not every member state can provide in a sufficient and efficient way.
The commission, together with the member states, is organising the ‘procurement process'. Afterwards it will be decided where these centres should be and for what diseases and treatment they should be responsible – "that is a political decision, that is EU health policy," says Mr Schulz-Weidner.
He also touches on the ethical debate behind having an EU market for health. "The EU's Lisbon strategy is all about making the EU more efficient, improving the economy. Would this lead to a situation where there is only investment in illnesses that can be cured quickly so that people can get back to work quickly? The health market is not a market like every other," he says.
The EU's technical and legal move into the health sector also has practical political implications.
Changes in how healthcare systems are organised and where people get their health care is likely to affect how people view their own countries and national governments.
Traditionally, healthcare, much like education, is what ties an electorate to a government and is strongly linked to the confines a modern ‘nation state'. Moving it to an EU competence would affect one of the staple electorate issues and how people vote.
For his part, health expert Wolfram Lamping from Hanover university believes that the commission uses health issues as a way of bringing the EU closer to citizens.
"Brussels is keen to create a European identity and a connection with European citizens – it does this through its social and health policy," he says.
Mr Schulz-Weidner adds to this by saying that he believes the EU is not going to take on the ball and chain of actual social security policy but it will want to bask in the reflected glory of headlines that read "EU ensures continued investment in rare illness drugs" or "EU ensures treatment of poor people."
But with no clear mandate for the EU, an ambitious but still careful court of justice and a powerful internal market engine, an EU health policy is not a reality yet.
For the moment, according to Mr Lamping, what the EU is doing is an "inspired muddling through."