Health Care Analysis

, Volume 19, Issue 4, pp 365–387

European Health Systems and the Internal Market: Reshaping Ideology?


    • European University Institute
Original Paper

DOI: 10.1007/s10728-010-0158-4

Cite this article as:
da Costa Leite Borges, D. Health Care Anal (2011) 19: 365. doi:10.1007/s10728-010-0158-4


Departing from theories of distributive justice and their relation with the distribution of health care within society, especially egalitarianism and libertarianism, this paper aims at demonstrating that the approach taken by the European Court of Justice regarding the application of the Internal Market principles (or the market freedoms) to the field of health care services has introduced new values which are more concerned with a libertarian view of health care. Moreover, the paper also addresses the question of how these new values introduced by the Court may affect common principles of European health systems, such as equity and accessibility.


Distributive justiceEuropean health systemsPrinciplesInternal MarketEquity


Health is an important concern for modern society. Individuals want to be and to remain healthy and this is viewed as one of the most valuable assets a person possesses.1 However, health is not indispensable only to individuals; in terms of society, health populations are not only economically more productive, but also socially more cohesive. And this is basically because health enables individuals to lead a socially and economically productive life.2 Considering that health care services contribute to improvements in health, both through its prevention and promotion, and can indeed be considered a determinant of health,3 the provision of health care has become an important issue for individuals as well as in today’s policy agendas.

These concerns of individuals and societies regarding health issues are reflected in the health policies developed by a certain government. In terms of ideology, it is possible to argue that health systems are shaped according to different theories of justice. For example, egalitarian and libertarian ideologies lead to quite different health care systems: in the egalitarian system, equal opportunity of access for those in equal need is the determining rule, independently of who is paying for the care, and this is best accomplished in a publicly provided system. By contrast, in the libertarian system, willingness and ability to pay is the determinant of access and it is most successfully accomplished in a market-oriented private system.

Although, in practice, in most countries we can find traces of both ideologies in the policies regarding the organisation and delivery of health care, the principles behind these policies are likely to be systematically related to the nature of equity concerns that have been dominant in the past, and are also likely to reflect the ideology which generated those concerns.4 In modern democracies and especially in European welfare states,5 people expect their governments to protect them against illness and disease, to guarantee safe and healthy food and environmental conditions, to reflect these expectations in national policies, and to be politically responsible for their achievement.6

The differences between the implementation of egalitarian and libertarian ideologies in the organisation of health care systems become clear when we compare, for example, European health systems with the American one. Despite cultural and economic differences between European nation states, they have typically become welfare states, where the social rights of citizenship play a crucial role and are no less important than civil and political rights.7 Therefore, European health systems are much more inclined towards the egalitarian viewpoint. By contrast, in the United States liberty plays a much important role than social rights, and the involvement of the state in providing welfare is very limited and restricted to minimum standards of care for the poor.

Although the egalitarian ideology in the organisation of health care systems still prevails as a premise in Europe and, in fact, is most widely supported by and widespread amongst health professionals and policy-makers,8 the formation of the Internal Market has had an impact on the way in which Member States organise their health systems. The application of the Internal Market freedoms to issues related to health care can have a direct or indirect effect on national laws and policies. In the case of cross-border health care, for example, the option of granting subjective rights to treatment to patients, as we can see in the jurisprudence of the European Court of Justice (ECJ)9 and in the proposal for a Directive on patients’ rights,10 reflects a specific approach to health care which promotes individual rights as a dominant value, being associated with the idea that health care is no different to other market goods and that patients are consumers in a health care market. Therefore, it is possible to argue that the Internal Market rules have introduced new values into the field of health care, which can be argued to be more concerned with a libertarian view of health care.

The impact of the Internal Market rules on the way in which Member States organise and deliver social welfare, including health care, has already been largely explored by scholars.11 These works are mostly concerned with the principle of solidarity. However, solidarity is not the only principle guiding European health systems. There are other principles that are widely accepted as common values of European health systems and that are recognised by European institutions as a way to contribute to social cohesion and social justice,12 as for example, universality, accessibility and equity, which might also be affected by the Internal Market rules.

Considering the above, the general scope of this paper will be to analyse, in the light of the theories of distributive justice applied to the field of health care, namely egalitarian and libertarian theories, the impact of Internal Market rules on the application of the principles of equity and accessibility to European health systems. This impact will not be analysed as a general issue, instead it will be used as an empirical example the case of cross-border health care and especially the jurisprudence of the ECJ on cross-border health care and the proposal for a Directive on patients’ rights.

In order to develop the proposed analysis, the first part of this article will be devoted to a brief literature review regarding the questions of the special moral importance of health care and of the theories of distributive justice used to justify the distribution of this special good among individuals. The discussion about theories of distributive justice and health care will also include the argument concerning the role of the market in health care provision. Following, I will describe the legal basis of cross-border mobility in the field of health care and, finally, departing from the jurisprudence of the ECJ about cross-border health care, I will identify the new values and premises introduced by the internal market rules in the field of health care and sketch their relation with a libertarian view of health care, showing how these new values introduced by the internal market rules affect the principles of accessibility and equity at national level.

The Special Moral Importance of Health and Health Care

One of the reasons leading us to talk about ideology and ethics of distribution in the field of health policies is the moral importance we attach to health and health care as special benefits or goods. Although health resembles other forms of human capital, such as education, professional knowledge or athletic skills, it is fundamentally different from them in several crucial respects: it is subject to strong and unpredictable risks, which are mostly independent of one another, and health cannot be accumulated in the same way as knowledge and skills.13

Even if health care is not the only determinant of health and is sometimes not the most effective and efficient way to protect and promote health,14 it is still extremely important for people because health care services can supply some critical needs in the case of illness and can reduce our anxiety about payment for the coverage of catastrophic illness. In fact, in modern society chronic diseases tend to frequently affect and disable people and thus the use of health care services tends to be necessary for a wide range of needs. As [6, p. 204] points out, “medical needs deserve special attention because they are unpredictable, randomly distributed, undeserved, and overridingly important when they appear.”

In recent years, several authors have developed work about the special moral importance of health and health care. Norman Daniels (2008), for example, who expanded Rawls’ appeal to the principle assuring fair equality of opportunity,15 attributes a moral importance to health care by arguing that the maintenance of the normal functioning of the body contributes to protecting the range of opportunities that individuals can reasonably exercise. In the same line, the capability view of health, developed from Amartya Sen’s (1985) capability approach,16 also supports the view that health and health care—due to its role in influencing health—are special goods. Resting on the Aristotelian ethical principle of “human flourishing”, this view considers that health is an end of political and societal activity, emphasizing that it is important because it is directly constitutive of a person’s well-being and enables that person to pursue the various goals and projects in life that he or she values.17

Once it is recognised that health and health care have a special status, the criteria for the distribution of these goods within the society will be different from the criteria applied to the distribution of non-special goods. Considering that theories of distributive justice tell us what goods justice is concerned with and how justice requires them to be distributed,18 these theories must be approached when talking about the distribution of health and health care. Therefore, this article turns now to the question concerning the theories of distributive justice used to justify the distribution of health and health care within society.

Health Care and Theories of Distributive Justice

Theories of social justice are the philosophical foundations used to justify the distribution of benefits and burdens within society. Opposed to the idea of retributive justice,19 which is concerned with private relations and is the business of courts and the legal profession, distributive justice is the “justice owed by community to its members, including the fair allocation of common advantages and the sharing of common burdens”.20 Hence, it is seldom the business of courts, but primarily the business of government and public policies. Different theories of distributive justice will reflect different moral principles as the basis or the meaning for what is just or fair and what distinguishes them are the principles used to give material content to the idea of justice. Although some authors consider the existence of other principles,21 here I will deal only with the principles related directly with egalitarian and libertarian theories of justice.22 The material principles of justice considered here are:
  1. (a)

    To each person an equal share

  2. (b)

    To each person according to individual need

  3. (c)

    To each person according to societal contribution

  4. (d)

    To each person according to ability to pay


Considering that the distribution of health care is primarily a political issue, each government invokes one or more of these material principles for public policies purposes, applying different principles to different contexts.


Egalitarian theories of justice emphasize equal access or equal distribution of social goods as a material principle of justice. A traditional and common criterion used by egalitarians is the Aristotelian principle of equality that equals ought to be treated equally and unequals may be treated unequally. However, this basic idea of equality is merely formal since no reference is made to what is to be considered equal. Thus, formulated in this way, the principle lacks substance and in order to specify the relevant respects by which people are to be treated equally, it is necessary to give some specification of the kind of equality that is under consideration.

The classic material principle of equality in terms of the distribution of goods corresponds to the idea of ‘each an equal share’. However, an extreme equality in the distribution of resources, though desirable, can be said to be unfeasible. First, because the legal, political and economic structures of modern societies do not allow for a completely equal distribution of resources without also implying a breach of individual property rights. Second, because, even if equality was achieved, inequalities would probably emerge again because people’s capacities, qualities and wants differ.

In the field of health care, this type of extreme egalitarianism or ‘strong egalitarianism’23 is avoided since it could lead to absurd situations in which a healthy individual receives the same amount of care as one in real need of care. Therefore, if the objective is to obtain an egalitarian result in the distribution of resources without violating individual rights or leading to absurd situations, other rules and principles must be applied in order to obtain the equalisation of differences between individuals. In this regard, another rule used by egalitarians is the principle of equality of opportunities. According to this rule, equalisation is achieved by giving people equal access to positions in society, i.e. any individuals in society with the same native talent and ambition should have the same possibility of success in competition for positions that confer special benefits and advantages.24

The principle of equality of opportunity was diffused in the late twentieth century by the most influential theory of justice of this time; that of [46]. Although a philosopher in the liberal tradition, the distribution of social goods proposed by Rawls’ theory is associated with egalitarianism.

Since then, some authors keep elaborating and expanding Rawls’ principle to some variants of equality of opportunity to welfare or advantage.25 In the field of health care, for example, Norman Daniels broadened Rawl’s notion of opportunity to include health-care institutions among the basic institutions involved in providing for fair equality of opportunity.26 Therefore, the provision of health care resources by the state is important because of the role it can play in furnishing an adequate range of opportunities to pursue valuable options for everyone.

A second influence of Rawls’s principles in the field of health care lies in the idea of need. Rawls [46, p. 86] sustains that special attention must be devoted to the worst-off because “in order to treat all persons equally, to provide genuine equality of opportunity, society must give more attention to those with fewer native assets and to those born into less favourable positions. The idea is to redress the bias of contingencies in the direction of equalities.” This is what Rawls calls the difference principle, which, expanded into the field of health care, can be understood through the idea of need. Health need is a crucial concept for the discussion of the distribution of health care insofar as it is one way of measuring equitable access to health services building on the idea that the access and the utilisation of services should reflect real needs for care.27 Therefore, translating Rawls’ difference principle into the principle of need leads to the idea that the greater the health need, the greater the reason to meet it.28

As we can see, the achievement of fairness in the distribution of health care according to egalitarian theories of justice requires the application of the need principle together with the fair opportunity rule. Making use of the material principles of justice stated above, it is possible to say that an egalitarian theory for the distribution of health care recognises the special importance of this social good and, in order to distribute it, combines the formal principle of justice, with the fair opportunity rule and the principle of need, leading thereby to the idea that people with equal health needs should be treated equally by having equal access to health care.

Another philosophical idea that helps to understand the egalitarian ideology in the distribution of health care is that of communitarianism.29 In the field of health care and especially in countries in which health services are part of welfare services provided by the government, as in Europe, communitarian arguments have a straight relation with the notion of public health ethics, since both are based on the idea of community. A communitarian view acknowledges bonds that unity societies and suggests that, by virtue of membership, individuals must have a concern for the health of others. Therefore, the communitarian philosophy also attaches a special moral importance to health care and recognises it as a social good,30 promoting equity as an important value.31

In Europe, this egalitarian ideology is shared across Member States and is used as a basis for the development of social policies, including health policies.32 This ideology is actually a corollary of the principle of solidarity, which is a core value of the European systems of social protection and is concerned with the general goal of social justice. Furthermore, universality, access to good quality care and equity are also values shared by the European health systems.33

Although different Member States have different approaches to turning these values into a practical reality, and some have relied on market mechanisms and competitive pressures to strategically manage their health systems, the commitment in providing everyone with full access to an adequate range of health care services, based on the material principle of equal access according to need, still prevails as a strong value in all Member States’ health systems. Therefore, at the heart of the European social model remains the concept of solidarity, which works not only as a founding principle but also as a moral premise that encompasses the idea of mutual responsibility of citizens for each other’s health care and that of equitable access to care. Solidarity is, thus, the most important value and probably what makes clearer the concept of the so-called European Social Model (ESM).34


Originally grounded on the ideas of the ‘invisible hand’ proposed by Adam Smith and on the laissez faire principle, libertarian theories of justice have a different view about the distribution of health care. These theories emphasize social and economic liberty as strong and dominant values, and concentrate on the individual rights of persons to enter and withdraw freely from arrangements in accordance with their perception of their interests.35 A just society in the view of libertarians “seeks not to promote any particular ends, but enables its citizens to pursue their own ends, consistent with a similar liberty for all; it therefore must govern by principles that do not presuppose any particular conception of the good”.36 A just society for libertarians is not one that seeks to promote the general good or an equal distribution; conversely it is one that promotes individual rights and freedoms and that protects its individuals from any kind of state intervention which might interfere with citizens’ rights of freedom and entitlements. Thus, in the view of libertarians, the distribution of social goods must be left to the market, which will ‘naturally’ allocate them guaranteeing, at the same time, liberty. During the twentieth century, the American philosopher Robert Nozick was one of the most important authors supporting the libertarian view in terms of distributive justice. According to his ideas, a distribution is just provided it has the appropriate history; provided it did in fact come about in accordance with the rules of acquisition, transfer and rectification of holdings. What might seem unequal according to egalitarianism is not unequal according to Nozick’s ideas because his entitlement theory does not merely look at the prevailing pattern of distribution, but it looks at the history on how the distribution came about.37

In the field of health care, libertarianism does not attach any special moral importance to health care. Conversely, this kind of service is viewed as a commodity, to be purchased in a market like any other commodity. Having this in mind, the American philosopher Ronald Dworkin developed a model for the distribution of health care in which he identifies how much should a society spend on health and how it should be distributed.38 When designing this model, Dworkin had in mind a libertarian society with a market oriented health system, since one of the premises of his hypothetical society is that health care is not provided by the government. In fact, market-oriented health systems have libertarianism as their basis and the material principle implicit in the distribution of health care is the ability to pay. In these systems, the state does not play a role in the distribution of health services and goods, and the term choice, as the essence of economic and social freedom, is a leading value. In market systems, choice means not only the choice of a doctor by the patient but also a personal choice about how much to pay for health care. Thus, on the one hand, there is choice for the individual to shop around and buy the health insurance package that best suits him. On the other hand, however, the fact remains that not all citizens will be able to afford any kind of coverage, thus remaining without access to health care. This is, for instance, one of the problems in the use of the libertarian ideology in the field of health care, because these systems usually end up creating a two-tier health system in which wealth grants some patients access to medical services that others with the same need cannot obtain. A paradigm for this kind of system is the American health system.39

The Market and Health Care

Nowadays, the discussion between egalitarian and libertarian theories of justice in the field of health care cannot be viewed anymore in a ‘black and white’ perspective, since it is not possible to avoid the influence and the role of the market even in the most egalitarian health systems and policies. Therefore, discussions about theories of distributive justice do not reflect anymore two contrasting prospects represented by the market versus the state; instead these discussions should depart from the premise that the market does play an important role in present day health systems and policies. The focus is then on the role and the value of the market in different types of health systems, i.e. of how market mechanisms are incorporated by health systems which use different ideologies to develop their health policies. In this regard, it is possible to say that some countries seem far more prone than others to incorporate and develop market ideas within their health systems, whereas others try to cope with the introduction of market values while maintaining the government role. The idea is not to make a judgement of the different uses of the market within health systems, instead the intention is to analyse whether this use of the market is compatible with the principles and values in which European health systems are grounded.

Accordingly, it is not only in the United States that the market plays a role in the health care system. In Europe some background conditions which started in the 1970s, led to a more prominent role for the market in European health systems from the 1980s. Economic background conditions, such as the economic crisis of the 1970s, which culminated in the oil crisis, affected the countries’ economies leading to unemployment. Social changes, as the new role of women in the market place, associated with medical progress creating a long life expectancy led to demographical changes in the structure of society. Furthermore, within the health care sector, an increasing role for medical technology in the provision of health care opened the door for the most sophisticated and expensive medical devices, including expensive pharmaceuticals, creating a link between the health care sector and the industrial economy, subjecting health care to the industrial imperatives of expanding the demand for goods and services.40

These economic, social and sector changes associated with a political environment known as the Thatcher and Reagan eras fostered the advocacy of the so called neo liberal agenda, which promoted amongst its main ideas a prominent role for the market and a reduction of the role of the state as a way to increase employment rates, adjust economies and reduce public expenditures.41 These ideas circulated with strong growing force particularly in the United States and the United Kingdom, but in the rest of Europe a parallel market stream, influenced by globalisation and aiming at providing financial sustainability of the economy and public services also took place.42

The health care sector was also affected by these neo liberal ideas. In fact, in the last 30 years almost all European health systems have undertaken some health reforms seeking for efficiency and cost containment and introduced market mechanisms in the funding and provision of health services. These market mechanisms comprise, for example, the use of competition, co-payments or user fees, private health insurance, for-profit versus not-for-profit institutions, medical savings accounts and physician incentives.43 The introduction of market mechanisms in European health systems was a gradual process and can be viewed indeed as ‘waves’ of reforms,44 each aiming at different objectives and resulting in different outputs. The first wave of reforms took place between the 1970s and the 1980s and aimed basically at containing costs. Some authors view it as a kind of fiscal imperative since the volume of costs consumed by the health sector doubled between the 1960s and the 1970s.45

The wave of reforms which took place between the 1980s and 1990s also aimed at containing costs, but by introducing greater competition and fostering efficiency within the system. The idea of managed competition introduced by the American health economist Alain Enthoven became incorporated into a general discourse of health policy and planning.

The third wave of reforms which took place from the mid 1990s onwards can be viewed as a step back in relation to competition and market mechanisms. This phase is characterised by more regulation and integration of the various components of the health system as a response to the retreat of market-oriented experiments.46

In effect, authors who analysed the outcomes resulting from the market reforms undertaken by European Welfare states have concluded that the changes introduced by market-oriented mechanisms have not changed the nature of the welfare state and thus have not implied the loss of social rights or the diminish of the universal social protection guaranteed by these systems.47 These analyses suggest that the reforms were of a more managerial and administrative nature, which far from diminishing the role of government engaged it in a different set of activities. Thus, health policy continues to be made at the national level, accompanied by tight aggregate expenditure and quality controls and strong government control still prevails in all instances of the health system—financing, organisation and delivery.48

Therefore, it is possible to argue that European health systems remain under government domination and focused on the goal of solidarity and universal access, even if entrepreneurial activities are accepted or encouraged. As the metaphor proposed by [9, p. 116] very well illustrate:

It is as if the European solidarity systems, whether of Bismack or Beveridge type, are saying to market ideas, in effect, we will sometimes accept you into our house and occasionally even welcome you—just keep in mind that it is our house not yours. Do not rearrange the furniture in any drastic way, and be sure to take off your shoes before entering.

In this sense, the reforms undertaken by European health systems did not imply the expansion of the market vis-à-vis the role of the state. That is the reason why some countries in Europe identify themselves as ‘social market states’,49 in which “public philosophy favors a creative blend of government and market forces in organizing society and tackling its problems”.50 This implies a special relation between market forces and the government and a good way of looking at it and identifying its particularities is by comparing the relation between market forces and the state role in European health systems with the one existent in the American system. The United States is much more prone towards liberal premises and, even if the government runs programmes for the provision of health care to the poor and the elderly, its role is still reduced vis-à-vis the role of the market. The government not only plays a reduced role in the provision of health care, but also encourages the market. Therefore, the use of the private insurance/private provider model51 is the general rule for the majority of the population, which may remain without coverage in many situations. This not only leaves space for an excessive market influence but also conditions the right to access to health services to the social economic condition of the individual.

One of the reasons for this excessive ‘commodification’52 in the field of health care in the United States is that solidarity is not universally embraced as a foundational principle of the health system as it is in Europe, which has remained focused on the goal of solidarity, seeing market mechanisms as a possible means to achieving this goal rather than an end in itself.53

Therefore, it is possible to conclude that in all health systems there is a role for the market and from system to system what changes is the space that the market occupies, that is, if it is just an instrument or if it is an end itself.

The Changing Role of the Internal Market in Health Care Systems

Another challenge faced by European health systems during the last years is the process of European integration, which spilled over the Internal Market rules and principles into the field of health care. This challenge is somehow linked to the discussion held above concerning the role of the market in the provision of health care, but it is different from the ‘waves’ of health reforms in many ways. First, because it is a process centred in Europe, second because it is an ongoing process, and third because the process of European integration, although strongly focused on economic integration, was not initiated exclusively for this reason. Moreover, the process of European integration is accompanied by a new legal framework which establishes another set of legal rules, different from national ones, but also binding on national states. However, the influence of the Internal Market on European health systems also involves the discussion about a more prominent role of the market in the provision of health care, since the assumption behind the application of the Internal Market rules (fundamental freedoms) to health care is that these services have an economic nature. This approach is also influenced by the framework of Services of General Interest, which also indicates a more economic approach in relation to health services.

This process can be thus viewed as contrasting forms of dealing with health policies: while at national level health policies are still seen as part of social and welfare policies, at European level prevails the idea of the primacy of the economic orientation of the integration project.54

For a long time these contrasting views were relatively irrelevant, since the delivery of health care services was regarded as a national activity over which Member States had full responsibility and control, and the role of the European Union in health policies was quite reduced. European policies were framed mostly and basically as competence in public health issues.55

In effect, the provision of health care services was for a long time regarded as part of welfare activities and, thus, linked to the process of state and nation-building.56 Accordingly, health services were viewed as an issue related to the concept of national citizenship in both its dimensions: territorial and social. In relation to the territorial dimension, health care represents an area where the state can ‘lock’ and exercise command over actors and resources. This is also called the principle of territoriality and refers to the freedom of Member States to use territorial elements in defining the scope of their social security schemes and in determining the qualifying conditions and the conditions of payment of benefits.57 With regard to social citizenship, health services can be viewed as a social right conferred onto citizens, but also as a way to promote reciprocity, mutuality and the notion of community. Therefore, the social dimension of citizenship also relates to the idea of collective redistribution, suggesting that, by virtue of membership, individuals must have a concern for the health of others.

However, by virtue of the process of European integration, the European Union started to expand its domains over other areas of health policies, including the provision of health care services. Since the creation and establishment of the European Union, in 1958, the EC Treaty provided for an exemption to the territoriality principle in order to encourage the free movement of people.58 In the mid-1970s, the then European Economic Community established a mechanism for the co-ordination of social security systems, introducing Regulations 1408/71 and 574/72. These Regulations initially guaranteed access to health care to migrant workers and their dependant families moving to or residing in the territory of another Member State, but subsequently extended this access to virtually the entire EU population and, more recently, also to third countries or stateless persons/refugees residing in the territory of a Member State.59

Broadly, the system established under Regulation 1408/71 is based on four overarching principles: non-discrimination on grounds of nationality, the principle of apportionment of benefit rights, the exportability of benefits, and the “single state” rule in terms of affiliation, liability to contribute and benefit entitlement.60 Furthermore, the Regulation provides for an eligibility criterion for receiving health care abroad which is based on the notion of emergency. Hence, certain categories of people are eligible to receive treatment outside their country of residence without having to meet the criterion of urgency.61 All other persons must instead meet the criterion of need/emergency in order to be treated abroad during a temporary visit.62

Regulation 1408/71 also provides for the case of planned health care abroad (Article 22.1.c). However, in this situation patients must obtain prior authorisation from their social security scheme. In this regard, it is important to notice that the Regulation does not provide for the conditions governing the granting of prior authorisation, but it states only the situations when the authorisation cannot be refused, namely (1) when the treatment required is provided among the benefits package of the health care system of patient’s Member State of residence, and (2) when the treatment cannot be provided to the patient in his/her Member State of residence within the time normally necessary for obtaining the treatment in question.63

European (Social) Citizenship and Health Care Rights

This process of regulation of social security policies at European level was then followed by the idea of a European (social) citizenship. It was in the Treaty of Maastricht that the idea of a European citizenship was introduced (Article 8 TEC).64 However, even conferring rights on European citizens, Article 8 did not provide for any type of social rights. In fact, apart from the legislation necessary for the implementation of the Internal Market and the free movement of workers, social legislation had not been an issue to the European Union until the mid 1980s.65 The reason for this lack of social legislation at European level lies in the fact that the project of the European Union is focused on economic policies rather than on redistributive social policies, which came about only as consequence of the economic objectives of the Union. Furthermore, there has been always a lack of competence of the European Union to legislate about social issues and little consensus among Member States about the character of a European social policy, since they have tried very often to protect their own national interests. As Kolb [37, p. 170] argues, “whatever moral or ideological dimension social rights could have from a European citizenship perspective, they become bargaining chips in the political arena.”

European social rights thus did not develop in the same way as national social rights, which, as the core of national welfare policies, are much more redistributive in nature. The social rights developed at European level have a more regulatory nature, since they were born as part of the Internal Market policies.66 Therefore, the rights originating from this type of EU policies were initially focused on workers and includes, inter alia, the co-ordination of social security systems, rights that guarantee health and safety in the work place, gender equality and non-discrimination for professional mobility.

Access to health care rights at European level can be considered a right falling into this category of regulatory social policies. It is important to note that the right to access health care services in a cross-border context was born in order to guarantee the free movement of workers and was then extended to other categories of patients. This is to say that they have followed the same dynamics of other rights related to the freedom of movement and the Internal Market project.

Although considered as an extension of national social rights and promoting indirectly some social benefits, the rights originating from the process of European economic integration are different from national social rights, not only because they do not have a redistributive nature, but also because they are more economic in nature. Due to their economic nature, some authors consider the rights created by the process of economic integration as part of the concept of European economic citizenship rather than part of European social citizenship.67

The differences between the social policy and rights stemming from the process of European integration and social rights at national level allow us to conclude that the concept of a European social citizenship is different from the traditional notion of social citizenship. Rather than strengthening citizens’ protection against socio-economic difficulties, they offer new conditions for various individual strategies and also build up the status of the citizen as a consumer.68 Therefore, the concept of national social citizenship cannot be transposed to European level and the rights originating from the notion of a European social citizenship instead of complementing or extending national social policies create a new set of opportunities which are not related to social objectives, but are concerned with the economic integration (or the Internal Market) and with citizens-consumers.69

This market citizenship draws on the idea of a mercantile form of citizenship designed to facilitate economic integration. Ideologically speaking, it can be regarded as a liberal conception of citizenship which works to the self-interest of autonomous individuals who want to pursue their chosen forms of life.70 The idea of a market citizenship is also supported by the view of the EU’s constitutional asymmetry that privileges the economic through the internal market but provides limited legal bases for social policy.71

The problem with a concept of European citizenship which is attached to free movement rights—or the Internal Market—is that it will serve only those citizens who exercise their right of free movement. Therefore, the rights it entitles are not universal as national social rights and, even if under Treaty rules all European citizens can make use of their European social rights, only those who possess the necessary resources required for intra-EU mobility will make use of the European social rights.

In relation to health care, a good example of a right which is attached to free movement is the right to effective and speedy medical treatment for patients,72 created as a consequence of the jurisprudence of the ECJ, which will be discussed in the next section of the article. The problem is that, in relation to health care rights this is of special concern, since privileging mobile citizens might have an impact on principles which traditionally have guided social rights at national level as, for example, the principle of equity.

Therefore, it is possible to conclude that social rights of citizenship, and especially health care rights, in a broader European context have not the same meaning that they have at national level. At European level, these rights are more attached to the notion of European integration and the exercise of free movement and, although conferred upon all European citizens, they are more likely to be exercised by a minority of Europeans who can afford the price of mobility. As Kolb [37, p. 173] argues, “The free moving Europe des elites is also a reality in that sense. The potential legitimating power of EU social legislation could, thus, be diminished by its restricted scope and the social discrimination that it reveals”.

The Jurisprudence of the ECJ on Cross-Border Health Care: Setting Aside Equity in Health Care

Since the end of the 1990s the exclusive powers of Member States over their health systems have been challenged before the ECJ. The judgements of the Court in cases concerning the delivery of healthcare and medical services in a cross-border context have given a new shape to the way national health policies are to be planned. Generally speaking, those rulings have created a dual system of social protection for planned care abroad, giving EU citizens the choice of opting out from the mechanism established by Regulation 1408/71.

Given that these judgements have already been extensively discussed in the literature and that it is not the objective of this paper to analyse them in detail, I will only address the main points of the judgements which are important for the objectives of this article. Therefore, some important issues contained in the judgements, such as the question of the division of competences between Member States and the Community, will not be developed here.

Apart from the question of competence, the most important issue decided in these judgements is the application of the Internal Market provisions in the field of health care. In order to apply the Internal Market provisions to health care services, the Court made the assumption that health care comprises services normally provided for with remuneration and within the meaning of Article 49 of the EC Treaty (now Article 56 of the TFEU). This assumption was applied by the Court irrespective of the type of health service or the structure and organisation of the health system under discussion. In this regard, it is worth noting that different types of health care services and goods were at stake in the cross-border health care cases. For example, in the Decker and Kohll cases the provision of services under dispute related respectively to the acquisition of a pair of spectacles and the provision of orthodontic treatment. In turn, in Smits-Peerbooms hospital treatment for Parkinson’s disease and intensive neuro-stimulation, respectively, were under dispute, whereas in Vanbraekel and Watts orthopaedic surgeries were at stake.

The assumption that all types of health services are economic services73 and thus fall into the scope of the rules on the freedom to provide services is the first point that can be said to be promoting a libertarian ideology in the provision of health services and contrasting with important values of European health systems. As noted above, one of the main differences between egalitarian and libertarian ideologies is that the first attributes a moral importance to health care, which is seen as a social good, whereas the latter does not acknowledge this special moral importance, viewing it only as a commodity to be purchased in a market just like any other. Accordingly, from the moment that health care services become an issue pertaining to the Internal Market rather than to social security matters, they loose their special nature as a social good, becoming a commodity subject to the rules applied to any other kind of service, being associated with the idea that patients are consumers in a health care market.74 Furthermore, this way the patient is considered in isolation rather than part of the community as a whole, which contrasts with the redistributive nature of health care as a welfare service.

The decoupling of the provision of health care from its social nature, as the ECJ did when moving the provision of health care to the domain of a purely economic activity, seems to be part of a trend of liberalisation and commodification of health services within the European Union. This trend can be observed in various dimensions of different policies developed by the European institutions. Although the focus of this article is the jurisprudence of the ECJ, it can be argued that health policies, and especially health care, are becoming a means of serving the priorities of the process of economic integration.75

In fact, it is worth noting that health services were until 2003 addressed by the European Commission as services of non-economic interest.76 However, the Commission makes clear that there is an evolving and dynamic character in the distinction between economic and non-economic services and that in recent decades more and more services have become economically relevant. Later on, the Commission started to address health services as part of the social services of general interest and it was, in fact, based on this view that they were included in the proposal of the Services Directive, though they ended up by being excluded.77

Now, there is a new proposal for a Directive concerning the provision of cross-border health care.78 Although the proposal refers to the appealing expression of ‘patients’ rights’, it is based on the same principles established by the ECJ, mainly on the premise that all types of health care services are bound by the fundamental principle of freedom to provide services.79 Hence, this proposal seems to be a strong attempt to create a market for health care in Europe rather than to promote the good of patients by extending European (social) citizenship rights.80

This argument brings me to the second point which can be argued to be promoting a libertarian and individualist ideology in the provision of health services. A good way to understand this second argument is by trying to answer the question: What kind of patients will benefit from this new European market for health care? If we consider that the cases submitted to the ECJ regard patients who went abroad paying out of their own pockets for travel and accommodation expenses, besides anticipating the costs of the treatment, only patients with enough resources to bear these expenses will be able to exercise their free movement rights.81

Assuming that equity of access based on need is one of the values shared by European health systems and that access is also measured according to the nature and extent of barriers imposed on patients, the costs of receiving treatment abroad can be seen as a financial barrier to access, which has a higher impact on lower income groups than on higher income groups. Moreover, we must take into account that income-related inequalities in the use of health care already exist in many European countries and this type of financial barrier is likely to increase these inequalities. In fact, it is possible to argue that this mechanism of cross-border health care is based on the ability to pay, which is a value common in libertarian systems.

At this point, then, it is important to highlight that equity and accessibility are two principles that are intrinsically related inasmuch as public policies devoted to promote and facilitate access work as a means for the achievement of equity in access. This includes, for example, policies to reduce financial and geographical barriers to access.

Another way in which the ECJ approach to health care can affect the principle of equity of access is the use of free movement rights by those wealthier patients as a way of bypassing waiting lists. There is a clear risk of the “circumvention of waiting lists by the middle classes. They are most likely and able to travel abroad, because of their greater confidence, their possession of foreign language skills unavailable to those from lower socio-economic groups, and, crucially, their ability to pay for travel and treatment upfront and wait for reimbursement”.82

In this regard, imagine, for example, the situation of two patients, A and B, who are affiliated to the same national health system that operates on a benefits-in-kind basis. They have the same health problem, the same need for care, and, thus, the same prescription for non-hospital treatment, for which there is a waiting list. Patient A has sufficient resources to travel and to pay for this non-hospital treatment and decides to have the treatment abroad, where he will not have to wait. By contrast, patient B, who is not as wealthy as patient A, will wait the time needed in order to have the same treatment provided in his own country.83

Finally, the idea of putting efforts into creating a system of cross-border health care which will privilege mostly high income groups does not seem to be compatible with the general goal of social justice and the essence of solidarity. It would be preferable for policy makers at European level to concentrate preferentially on those groups which represent a more salient challenge to social justice, such as the least advantaged, the elderly, racial minorities, disabled and mental health patients, rather than focusing on the better-off.84

It seems, thus, that the kind of policy that is being developed by the European Union in relation to access to cross-border health services, although in theory aimed at respecting the principle of equity of access, is likely to seriously undermine this principle, and that freedom of movement may be won at the expense of the principle of equal access for equal needs, which is an important tool for reducing inequalities in health care between social groups. The risk is that of creating a system within the Union in which the right to effective and speedy medical treatment will be available only to the wealthier, who will have the possibility to shop around for better and faster health services.


Egalitarian and libertarian theories of distributive justice point towards different types of health systems. In Europe, although market mechanisms have been used in order to reduce costs and increase efficiency within health systems, the egalitarian ideology still prevails as a basis for the development of public policies in the field of health care. This is demonstrated insofar as solidarity, universality, equity and accessibility are recognised as common values underpinning the European health systems.

Nevertheless, during the last decade, the ECJ, by virtue of the Internal Market project, has introduced some values into the provision of health care which risk undermining the egalitarian ideology supporting national health policies. These values have libertarian inspirations and contrast important principles of the egalitarian ideology, such as equity and accessibility. Based on the rulings of the ECJ, in 2008 the European Commission put forward a proposal for a Directive comprising these new values established by the Court.

Considering that the results of a certain policy can be self-perpetuating and that policy decisions taken at one time can have a major influence over what is possible and realistic in the future, the future of European Union health care policy is now at stake with the proposal of the directive on patient’s rights. The moment is still ripe for choosing an appropriate equilibrium between different policies or combinations of policies.85 In terms of what has been developed so far with regard to health care policy, it is possible to argue that the path chosen has been that of the Internal Market, which privileges the economic aspects of medical services rather than its social objectives. This path towards a marketised approach to the provision of health care moves the basis of European health policies from an egalitarian and solidaristic ideology into the direction of a libertarian ideology, which is the tradition in the development of American health policies.

However, the problems pointed out in this paper show that an exclusively market approach to health care services is likely to undermine important principles shared by European health systems. Assuming that any social regime within the EU must now take its place within the ‘constitutional’ construct of the Internal Market,86 the challenge is to find the best way to develop a European health care policy that balances the principles of equity, accessibility, universality and solidarity, and Internal Market freedoms.


Barak-Erez and Gross [5].


International Conference on Primary Health Care, Alma-Ata, USSR, 6–12 September 1978.


Ruger [47].


Williams [55, p. 292].


The most common typology used to distinguish the different models of welfare state is the one proposed by Esping–Andersen. He laid out three main types of welfare states, in which modern developed capitalist nations cluster: the liberal, the conservative and the social democratic. The differences between these models are centered in the relation between the private and public sectors in the provision of social services, in the level of decommodification of social services goods and in the social structure. Although, in practice, welfare states are not designed according to his typology, the traditional examples of the three types of welfare states he proposes are the United States (liberal), Germany (conservative) and Sweden (social democratic) [20].


Lamping [39, p. 20].


De Búrca [16, p. 11].


Most studies of equity in the delivery of health care start from the premise that health care ought to be distributed according to need rather than ability to pay [54, p. 9].


See for example, Case C-120/95 Decker; Case C-158/96 Kohll; Case C-368/98 Vanbraekel; Case C-157/99 Smits and Peerbooms; Case C-385/99 Müller-Fauré; and Case C-372/04 Watts.


Commission of the European Communities [12].


See for example, Dougan and Spaventa [18].


Council of the European Union [14].


World Health Organization [57, p. 4]. Date accessed 12 February 2010,


In effect, other social determinants of health, such as sanitation, income and education are more effective in improving health indicators [6].


Rawls [46].


Sen [51].


Anand et al. [1, p. 17].


Hurley [29, p. 308].


“Justice concerned with the relation between persons and especially with the fairness in the exchange of goods and the fulfilment of contractual obligations” [7, p. 942].




See for example, Stanton-Ife [52, p. 17].


Utilitarianism is also important as a theory of distributive justice. Classical utilitarianism is based on the work of Jeremy Benthan and John Stuart Mill who believed that pleasure promotion and pain avoidance could be measured cardinally. Therefore, this theory supports that individual action is adequate when it maximises pleasure and well-being and minimises pain. Although utilitarianism is used in the field of health care, it is usually associated with some special feature of the health system, as for example applied in specific areas of the system, such as health care planning and priority setting, and not as a general ideology to justify the moral basis of the health system. This is the reason why it will not be considered separately in this work.


Olsen [45].


Arneson [3]. Date accessed 12 February 2010,


See for example, Arneson [2] and Cohen [11].


Daniels [15, p. 57].


Gulliford et al. [26].


Supra n. 21, p. 9.


The communitarian movement gained expression during the 1980s as a critical philosophical movement against libertarianism. By defending the idea that communitarianism is the politics of the common good as opposed to the politics of rights diffused by liberalism, communitarian philosophers have sought to move ethics away from individual rights and universal rules toward theories which give moral importance to the community and the social good.


Mooney and Houston [41].


Wiseman [56].


For matters of ideology and ethics, public health systems which provide universal access to health care tend to use the egalitarian ideology as the basis for their policies. However, even countries that do not use this ideology as a general policy supporting the whole system, have egalitarian concerns to develop some specific policies. This is the case, for example, of the Medicaid and Medicare in the United States, which are health care programmes specially designed for the poor and the elderly, respectively.


“The overarching values of universality, access to good quality care, equity, and solidarity have been widely accepted in the work of the different EU institutions. Together they constitute a set of values that are shared across Europe. Universality means that no-one is barred access to health care; solidarity is closely linked to the financial arrangement of our national health systems and the need to ensure accessibility to all; equity relates to equal access according to need, regardless of ethnicity, gender, age, social status or ability to pay. EU health systems also aim to reduce the gap in health inequalities, which is a concern of EU Member States;[…]” Supra n. 12, p. 3.


Jepsen and Pascual [30].


Supra n. 14, p. 190.


Sandel [49, p. 13].


Nozick [44, pp. 138–139].


According to this model, health care cannot be considered the chief among all goods (the ‘insulation’ model of health care) because in this case it would require society to spend all its resources on health care. He also refuses the idea of need, arguing that it is a philosophically controversial idea. By imagining a society where there is fair equality in the distribution of resources, where people in general know about the costs and value of medical procedures, and health care is not provided by the government, he proposes, then, that whatever this society spends as its total health-care budget and however it distributes health care would be a just distribution of health care for that society [19].


Although the American system underwent some changes due to the health reform recently approved, which aims, inter alia, to increase the number of people with health insurance coverage by creating a new insurance marketplace that allows people without insurance and small businesses to compare plans and buy insurance at competitive prices, and by offering a public health insurance option to provide the uninsured who cannot find affordable coverage with a real choice, the reform is not intended to change the market-oriented logic of the system. For detailed information, see the reports on the Obama Plan. Date accessed 14 February 2010,


Freeman and Moran [24, p. 36].


Santos [50, p. 21].


Callahan and Wasunna [9, p. 9].


Ibid. p. 112.


Toth [53].


As Freeman and Moran explain “By 1975, in France, Germany and Sweden, public spending on health absorbed more than twice the proportion of GDP it had in 1960: in Italy, health spending had grown by more than two-thirds and in the UK by more than half.” Supra n. 40, p. 37.


Supra n. 40.


See for example [21].


Saltman [48]. Available at, Date accessed 22 March 2010.


For example, Article 20 paragraph 1 of the German Basic Law characterises Germany as a ‘social federal state’. In economic terms, this idea is associated with a ‘social market economy’, an expression invented by the German Professor of Economics Alfred Müller Armak, which presented in an article of 1948 the ‘social market economy’ as a third way between ‘laissez-faire liberalism and ‘planned economy’ with the threat of socialisation [32, p. 139].


Brown and Amelung [8].


The use of private insurance combined with private (often for-profit) providers. According to this model, insurance can be mandatory, as in Switzerland, or voluntary, as in the United States, and in the case of the latter, affordable insurance may not be available to some individuals [17, p. 10].


Esping–Andersen refers to this term as the “process by which both human needs and labor power became commodities and, hence, our well-being came to depend on our relation to the cash nexus.” Supra n 5, p. 35.


Jost et al. [33].


Joerges [31].


Koivusalo [36].


Ferrera [22, p. 11].


Cornelissen [13].


Mossialos et al. [42, p. 83].


See Regulation 859/2003.


Hervey and McHale [28, p. 113].


This includes: pensioners entitled to a pension and their families; nationals of a Member State and their families not currently employed and looking for a job in another Member State; employed or self-employed persons exercising their professional activity in another Member State; frontier workers; students and those undertaking professional training and their families.


This mechanism is put in practice through the use of the European health insurance card, which ensures that the person will get the same access to public sector health care (e.g., a doctor, a pharmacy, a hospital or a health care centre) as nationals of the country he/she is visiting.


Although Regulation 1408/71 provides for mechanisms which allow the free movement of people, including planned health care abroad, the control over these mechanisms still confers wide discretion to Member States. This discretion is, indeed, found in the wording of Article 168(7) of the TFEU) which, in theory, provides for the application of the principle of subsidiarity, explicitly preserving Member States’ competence in the organisation and delivery of health services and medical care.


At the present moment, with the enter into force of the Lisbon Treaty, European citizenship is mentioned in Articles 9, 18 and 20 of the TFEU.


Ibid. p. 168.


In this regard, Majone proposes a distinction in relation to the social policies developed at European level, distinguishing them in policies of regulatory nature and those of non-regulatory nature The social policies of regulatory nature are those developed by the European Union based on the freedom of movement and aiming at implementing the Internal Market. They do not have a redistributive nature and are motivated by an efficiency criterion, having only indirect redistributive consequences. The second category of social policies is represented by those policies which really have redistributive objectives. These policies aim at reducing inequalities between the different countries and regions, and foment social cohesion within the Union, and they are promoted through the different Structural and Cohesion Funds of the European Union. Rights promoted through these funds are much vaguer and, although redistributive in nature, they are minimum in comparison to national social policies [40].


Kandil [35, p. 160].


Supra n 66.


Clarke et al. [10].


Kostakopoulou [38]. It must be noted, however, that this author, although describing different models for the European citizenship, including the market model, does not support the idea that the market citizenship is the one pursued by the EU.


Flear [23].


Kaczorowska [34].


In this regard, in Watts (Paragraph 86) the Court pointed out that “It should be noted in that regard that, according to settled case-law, medical services provided for consideration fall within the scope of the provisions on the freedom to provide services (see inter alia, Case C-159/90 Society for the Protection of Unborn Children Ireland [1991] ECR I-4685, paragraph 18, and Kohll, paragraph 29), there being no need to distinguish between care provided in a hospital environment and care provided outside such an environment (Vanbraekel, paragraph 41; Smits and Peerbooms, paragraph 53; Müller-Fauré and van Riet, paragraph 38; and Inizan, paragraph 16)”.


Even if the Court recognises the special nature of health services as a social security benefit, according to its view this assumption does not place these services beyond the scope of the Union rules on free movement. See for example, Kohll, paragraph 20 and Smits and Peerbooms, paragraph 54.


Koivusalo [36].


Non-economic services are those which are prerogatives of the State, such as national education and compulsory basic social security schemes. See the Green paper on services of general interest. Commission of the European Communities. 2003. COM (2003) 270, p. 15.


One of the main critics concerning the inclusion of health services in the services directive was that the underling concept of the proposal was a simply relationship between a consumer and a provider and health services, however, form part of complex systems, involving also a third party, which pays the major part of the bill. See R. Baeten, “The potential impact of the services directive on health services”, in: P. Nihoul and A.C. Simon (eds.) L'Europe et les soins de santé: marché intérieur, sécurité sociale, concurrence (Bruxelles: Larcier, 2005).


In its meeting on 2 December 2009, the Council failed to reach an agreement on the Patients’s Rights Directive, therefore it has not been approved yet. Date accessed 25 April 2010,


For comments on the proposal, see [4].


As Baeten argues, “a general ‘clean-up’, had been carried out in order to eliminate any notion of ‘health services from the text. Instead, the provisions were presented under the heading of ‘patients’ rights’. This general tyding up did however not concern the legal basis of the proposal, which remained Art. 95 of the EC Treaty, concerning the internal market.” Ibid., p. 157.


At this point, it is worth noting that through the mechanism established by Regulation 1408/71 patients can receive treatment abroad as benefits-in-kind.


Flear [23].


This was, in effect, argued by Advocate General Colomer in his opinion in Case C-385/99 Müller-Fauré, paras 51 and 52, in which he states that “there is another reason why I believe there would be a relatively high number of patients who, if they could be certain of being reimbursed, would choose to travel to another Member State in order to see a specialist. They would be those who, having the means to afford it, would not wish to wait a relatively long time before being seen by a doctor. The patient seeks, with legitimate eagerness, to do everything in his power to look after himself”.


As Newdick claims, “health rights in systems based on social welfare cannot be enforced without regard to their impact on others. They are relative rights which can be determined only by reference to the needs of other patients and mediated through the discretion of a third party public authority” [43, p. 1651].


As Greer states, “Some would integrate health into the internal market; some would integrate it with other areas of EU social policy; and some would enhance its distinctiveness” [25, p. 225].


Hervey [27].



I would like to thank professor Christopher Newdick for his helpful comments on a previous draft of this paper.

Copyright information

© Springer Science+Business Media, LLC 2010