The European healthcare union has emerged and evolved despite member states insisting that the organization of welfare should primarily remain a national responsibility (Ferrera, 2005; Leibfried, 2010). This evolution concerns the classic question of European integration. Which driving dynamics have been at play and explain the emerging features of a European healthcare union? Research on EU healthcare integration indicates different dynamics and institutions in explaining the emerging field. One line of research focuses on crises- or problem-driven dynamics where the outbreak of communicable diseases, such as AIDS or the BSE crisis, or shared public health problems, such as obesity, have pushed for European solutions. In this expansion of Union involvement, the European Commission is presented as a successful entrepreneur that seized the window of opportunity and expanded EU power and provisions (Lamping and Steffen, 2009; Kurzer and Cooper, 2011; Steffen, 2012; Greer and Löblová, 2016, this volume). Confirming the neo-functionalist focus on the stimulating role of non-state actors, the DG SANTE is presented here as a key institution that accepted political leadership and ensured EU involvement in public health. Similarly, the influence of other non-state actors, such as professional medical networks, have been noted (Trubek et al, 2009).
In recent decades, the politicized issue of identity has begun to overshadow problem-solving as a key motive in discussions on European integration (Hooghe and Marks, 2009). The greater public is also no longer indifferent to what (supranational) elites have decided. The era of permissive consensus has thus come to an end. Greer and Löblová couple neo-functional spill-over dynamics with Kingdon’s multiple streams approach to identify the impact of politicization and dissensus. In the two processes of agenda-setting that they examine, Greer and Löblová cannot identify the constraining dissensus of politics as presented by Hooghe and Marks (2009), but they note that political dissensus may still apply in the decision making phase of integration. The neo-functionalist explanations above primarily concern issues of public health; these issues involve less reluctance among governments and the greater public concerning integration. The financing and organizing of healthcare may be a different story, however. Kingdon’s multiple streams approach, or variations of it, can still be helpful to explain whether a European healthcare union may yet emerge in the organized chaos of the EU despite a Eurosceptic mood (see also Vollaard and Martinsen, 2014; Baeten and Vanhercke, 2016).
As noted above, the CJEU has played an important role in the integration of cross-border healthcare. The CJEU has constituted a major motivation for the making of EU health law. Hervey (2016) argues that when we can explain how EU health law emerged as a field, we must examine how and by whom the law was narrated. Hervey notes that narration is the core to the evolving EU health regulation, which is a process through which principles, content and themes are discerned and articulated. For the emerging EU healthcare law, three main groups have been involved, namely, the legislature, the courts and the academy. The national courts and the CJEU have been key actors in deciding the content and scope of the narration, but they have been joined by the national and EU legislatures and to a lesser extent, the academy. Each set of actors have their own interpretation of what constitutes the meaning of law, and they do not always agree. Especially the legislatures have insisted on ‘objective public interest’ to be part of the narration to protect the organization and capacity of national health care systems. The emphasis on ‘objective public interest’ has increasingly been recognized by the CJEU. The narration of EU healthcare law is thus also a process through which both the scope and the limits of EU regulation are defined. The narration of EU healthcare law is not a linear line of progression towards more EU regulation. In addition, the application of the narration and its implementation and impact is not a given or automatic but depends on its clarity, that is, which Hervey terms ‘structural coherence’.
Legal integration is also the focus of another line of research, in particular the field of cross-border healthcare (Martinsen, 2005; Greer, 2006). Here the litigants, courts and particularly the CJEU come to the forefront and explain the expansion of EU competences. The CJEU applied internal market principles to the healthcare area, and for almost a decade, progressive legal interpretations were able to advance what politics could or would not. However, the political reluctance towards any EU intrusion into national healthcare systems left its mark on both CJEU case law and its implementation. The integration process of Union cross-border healthcare details the dynamics of law and politics as they unfolded over time. Concerning the law, CJEU case law intervened in a highly sensitive political field. The CJEU likely did not anticipate the strong reactions against its legal moves. As noted by Greer and Jarman (2012), the Court probably did not know much concerning the substance of healthcare or did not give much consideration to the impact of and responses to entering a ‘complex, politically difficult and very expensive area’ (p. 267). Regarding politics, healthcare ministers first strongly opposed CJEU intervention in the policy field but were soon unable to agree on a political response to legal integration. The member states waited for the Commission to take the initiative, but the Commission responded with ‘deafening silence’ (Palm et al, 2000, p. 78). Apparently, the European executive was crippled with internal disagreements between its Commissioners and DGs, and the European Parliament warned the Commission of the political defeat that it would suffer if it did not establish the appropriate balance among the principles of the internal market through subsidiarity (Martinsen, 2015, pp. 147–148).
Meanwhile, the European Court continued to develop its interpretations on cross-border healthcare. As the rulings developed, their scope was gradually clarified. On the one hand, the Court applied its reasoning to all healthcare systems. On the other hand, the CJEU also established that deviations from the free movement principles were justifiable under certain conditions, thus ‘fine-tuning’ its jurisprudence (Obermaier, 2009; De Ruijter, 2015, p. 228). In July 2008, the Commission could finally present its proposal on patients’ rights in cross-border healthcare. It was clear from early on that a majority of politicians in the Council and the European Parliament wanted to maintain national control over a large scope of healthcare treatments through prior authorization. The adopted version of the Directive thus came to modify the impact of the Court’s jurisprudence because it allowed for the use of prior authorization for not only hospital care but also highly specialized and expensive outpatient care – as defined by the member states. The Commission was highly unsatisfied with this political development and found that the extensive use of prior authorization in fact departed from the case law of the Court (Martinsen, 2015, pp. 171–172).
At the same time, the CJEU, however, has taken a more ‘tempered’ approach and apparently adapted its behaviour to the European legislator (Hatzopoulos and Hervey, 2013). Even during the decision-making process between the Council and the European Parliament, the CJEU adapted its reasoning concerning an extended use of prior authorization (Baeten and Palm, 2013, p. 394).Footnote 3 The law and politics dynamics that were involved in constructing the emerging healthcare Union thus demonstrate that legal integration was highly important from the outset, but the CJEU did not do it alone. The course of legal integration was occasionally modified and proved responsive to political positions. The CJEU did not need to adapt its position because its previous rulings were based on primary law, which from a formal point of view, can only be overridden through a Treaty amendment. Therefore, the adaptive behaviour of the Court is even more noteworthy, as observed by Hervey and McHale (2015): ‘[t]he CJEU is not, of course, obliged to follow the legislature where it interprets Treaty provisions such as Article 56 TFEU, but in practice it usually does so’ (p. 91). This implies a more fine-grained relation between law and politics than a simple neo-functionalist reading would suggest. This relation is where European politics plays a decisive role and where the Court is not politically blind but even looks for ‘political guidance’ on how to apply more open Treaty provisions (Baeten and Palm, 2013, p. 394).
The relation between law and politics is not only dynamic at the law-making stage. As illustrated in the three contributions concerning the implementation of CJEU case law and the patients’ rights directive, the healthcare union also consists of tensions and contradictions between the rules that emerge at the ‘federal’ level and how they are responded to at the national level. Moreover, the dynamic between law and politics plays out rather differently across and within member states because national courts and national governments vary in their application of EU law.
To conclude, the contributions of this volume demonstrate that the emerging healthcare Union is a co-operative system that combines self-rule and shared rule (Vollaard et al, 2015). A large part of healthcare is still organized by the member states, and the impact of the shared rule depends on its national implementation. At the same time, the two levels are intertwined, with overlapping competences through continuous interaction and disputes, and they attempt to settle the division of labour and define the line between shared rule and self-rule. The contributions of this volume present a broader set of actors, institutions and dynamics in the making of a European healthcare union than what arises from the interactions among an entrepreneurial Commission, a dynamic Court and reluctant national politicians suggest. This volume notes that the dynamics differ depending on where we are in the policy-making process and which sub-area of healthcare we investigate. Together, the different pieces substantiate that when examining the emergence, content and outreach of a policy field, the way is long and winding from policy idea through politics to output.
Although fragile, a European healthcare union is in the making. Healthcare can be produced, consumed and provided across the internal borders of the EU. A distinct field of law and set of institutions co-regulate healthcare, whereas common values, rights and principles have been agreed on. Certainly, national healthcare systems have not been fully integrated into a single European healthcare system. In addition, other policy actors and principles still leave their mark on EU involvement in healthcare policies. Moreover, in practice, compliance with EU legislation and case law on patient mobility remains rather variegated across and within member states. However, the EU has become an extra, although thin, primary regulatory layer in organizing, financing and providing healthcare (Vollaard et al, 2015).