Cross-border Healthcare and the ‘Social Market Economy’

This contribution focuses on cross-border healthcare as a ‘prism’ through which the concept of a European ‘social market economy’ can be assessed. By reflecting upon the legal definition of ‘legitimate restrictions’ that Member States may place upon the principles of freedom of movement and freedom to provide services, the authors underline the strong relationship between market and social rights under European Union law. The cross-cutting features of the right to receive or to provide cross-border healthcare offer some very interesting insights into the legal realisation of the concept of ‘social market economy’. It also underscores the contradictions and frequent tensions that the intersection of social rights and market freedoms poses both at the Union and national level. Both the case law of the CJEU and the Directive on patients’ rights in cross-border healthcare raised some criticism, most of which was due to the perceived risk that an uncontrolled flow of (primarily wealthy) patients from one Member State to another would pose for national, solidarity-based systems. However, this fear proved to be largely unsubstantiated, as the expanded cross-border system had little, if any, impact on the healthcare provision at the Member State level. Rather, the effects of the global economic crisis and the EU’s economic governance instruments are among the factors that are most likely to influence social rights in general and healthcare treatments in particular among the Union’s Member States. In the field of healthcare (and, more generally, in the granting of social rights) the TFEU’s ‘social market economy’ is the legal and constitutional embodiment of the necessity to secure inclusion and integration among Member States. The perspective adopted in this contribution suggests that one way to secure the EU’s ‘social market economy’ in such an area of tension is to provide procedural, rather than substantive rights. Procedural review might help to secure minimum standards for basic social rights, such as the right to healthcare. Furthermore, this approach could contribute to the realisation of the general objectives of the EU, to secure a high level of human health protection.