Abstract
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.
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Notes
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, http://www.who.int/whr/2000/en/whr00_en.pdf.
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].
Ibid.
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, http://plato.stanford.edu/entries/egalitarianism/.
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, http://www.healthreform.gov/reports/index.html.
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 http://www.euro.who.int/observatory/Studies/20021223_2, 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, http://register.consilium.europa.eu/pdf/en/09/st16/st16005.en09.pdf.
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].
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I would like to thank professor Christopher Newdick for his helpful comments on a previous draft of this paper.
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da Costa Leite Borges, D. European Health Systems and the Internal Market: Reshaping Ideology?. Health Care Anal 19, 365–387 (2011). https://doi.org/10.1007/s10728-010-0158-4
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DOI: https://doi.org/10.1007/s10728-010-0158-4