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Health Systems and Policy Space for Health in the Context of European Union Trade Policies

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Services of General Interest Beyond the Single Market

Part of the book series: Legal Issues of Services of General Interest ((LEGAL))

Abstract

European Union trade policies have been evolving towards more emphasis on bilateral agreements and addressing non-tariff barriers to trade with an increasing number of trade negotiations with focus on services, government procurement and investment. Maintaining national policy space is a challenge for governments due to negotiation focus, practices and priorities. This is further affected by the changing relationship between national health systems and European Union law. While national health systems have become commercialised, this has not been recognised as part of trade negotiations. The variety of health systems within the European Union also creates challenges for Member States wishing to maintain full policy space for cost-containment and regulation, and return to public provision of services. This paper explores emerging concerns regarding maintaining policy space from a Member State perspective in the context of evolving European Union law, and priorities and practice in trade negotiations.

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Notes

  1. 1.

    Article 152:5 of the Treaty establishing the European Community (Nice consolidated version) states that “Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in para 4(a) shall not affect national provisions on the donation or medical use of organs and blood.”

  2. 2.

    Hatzopoulos 2013, p. 125.

  3. 3.

    CJEU, Case C-158/96 Raymond Kohll v. Union des caisses de maladie [1998] ECR I-1931.

  4. 4.

    CJEU, Case C-120/95 Nicolas Decker v. Caisse de maladie des employés privés [1998] ECR I-1831.

  5. 5.

    CJEU, Case C-372/04 Yvonne Watts v. Bedford Primary Care Trust and Secretary of State for Health [2006] ECR I-4325. In these healthcare systems access to services is defined on the basis of residence and free (or mostly free) at the point of use.

  6. 6.

    Nedwick 2006, pp. 1645–1668 has brought up a number of difficulties with the ECJ approach to healthcare, whereas Hatzopoulos 2002, pp. 683–729 has emphasised how the ECJ had prioritised individual rights over governance of health care in the decisions and created a market in health care. See also, Brooks 2012, pp. 33–37.

  7. 7.

    See e.g. CJEU, Case C-368/98 Abdon Vanbraekel a.o. v. Alliance nationale des mutualités chrétiennes [2001] ECR I-5363; CJEU, Case C-157/99 B.S.M. Geraets-Smits v. Stichting Ziekenfonds VGZ and H.T.M. Peerbooms v. Stichting CZ Groep Zorgverzekeringen [2001] ECR I-5473; CJEU, Case C-385/99 V.G. Müller-Fauré v. Onderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA and E.E.M. van Riet v. Onderlinge Waarborgmaatschappij ZAO Zorgverzekeringen [2003] ECR I-4509; CJEU, Case C-444/05 Aikaterini Stamatelaki v. NPDD Organismos Asfaliseos Eleftheron Epangelmation [2007] ECR I-3185.

  8. 8.

    The control of costs of health and pension systems has been part of economic policy focus for a longer time. See, for example Council of the European Union, The 2004 Update of the Broad Guidelines of the Economic Policies of the Member States and the Community (for the 2003–2005 period), 10676/04, 21 June 2004. However, after economic crisis health is increasingly an important part of European Semester process with European Commission providing guidance as part of Health 2020 and European Semester for Member States due to importance of health and long-term costs for public spending, see e.g. European Commission, Thematic summary on health and health systems, available from: http://ec.europa.eu/europe2020/making-it-happen/key-areas/index_en.htm. Accessed 27 November 2014 ; Council of the European Union, Conclusions on the sustainability of public finances in the light of aging populations, Press Release, 15 May 2012, para 3.

  9. 9.

    European Commission, Modernising social protection for the development of high-quality, accessible and sustainable health care and long-term care: support for national strategies using the ‘open method of coordination’, COM(2004) 304 final, 20 April 2004, p. 11 makes an interesting interpretation on how responsibilities for the organisation and funding of the health care and elderly care sector rests primarily with the Member States, which are bound, when exercising this responsibility, to respect the freedoms defined and rules laid down in the Treaty.

  10. 10.

    European Commission, High level process of reflection on patient mobility and health care developments in the European Union, HLPR/2003/16, 9 December 2003.

  11. 11.

    See e.g. European Commission, Green paper on Services of General Interest, COM(2003) 270 final, 21 May 2003; European Commission, White paper on Services of General Interest, COM(2004) 374 final, 12 May 2004.

  12. 12.

    Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ 2006 L 376/36; Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border health care, OJ 2011 L 88/45.

  13. 13.

    See European Commission, Proposal for a Regulation of the European Parliament and of the Council on establishing a Health for Growth Programme, the third multi-annual programme of EU action in the field of health for the period 2014–2020, COM(2011) 709 final, 9 November 2011. Pharmaceutical policies were moved from DG enterprise to Health and Consumer affairs in 2009, see European Commission, President Barroso unveils his new team, Press Release, IP/09/1837, 27 November 2009.

  14. 14.

    Council conclusions on common values and principles in European Union Health Systems, OJ 2006 C 146/1, Statement paras 1–3.

  15. 15.

    This is to some extent compromised by the fact that in spite of initial concerns the new proposal was not based only or, in particular, on the TFEU public health Article 168, but essentially on TFEU Article 114 (95 TEC) on functioning of internal markets, which was claimed as the “appropriate” article based on the claim that “functioning of internal markets on the basis of Article 114(3) requires that, in achieving harmonisation, a high level of protection of human health is to be guaranteed taking account in particular of any new development based on scientific facts.”, Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients’ rights in cross-border healthcare, OJ 2011 L 88/45.

  16. 16.

    Article 152.5 ECT (Nice version) had a clear and explicit focus on public health: “Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in para 4(a) shall not affect national provisions on the donation or medical use of organs and blood.”

  17. 17.

    Foreign and Commonwealth Office 2008, p. 14.

  18. 18.

    European Commission, White paper, Together for Health: A Strategic Approach for the EU 2008–2013, COM(2007) 630 final, 23 October 2007.

  19. 19.

    European Commission, Consultation regarding Community action on health services, SEC(2006) 1195/4, 26 September 2006.

  20. 20.

    European Commission, Proposal for a Regulation of the European Parliament and of the Council on establishing a Health for Growth Programme, the third multi-annual programme of EU action in the field of health for the period 2014–2020, COM(2011) 709 final, 9 November 2011.

  21. 21.

    See e.g. Van de Gronden et al. 2011; Mossialos et al. 2010; Tritter et al. 2009, pp. 76–94; European Commission, A Quality Framework for Services of General Economic Interest in Europe, COM(2011) 900 final, 20 December 2011.

  22. 22.

    European Commission, Proposal for a Directive of the European Parliament and of the Council on the application of patients’ rights in cross-border healthcare, COM(2008) 414 final, 2 July 2008; Koivusalo 2010, pp. 263–280.

  23. 23.

    Hatzopoulos 2013, p. 126.

  24. 24.

    Council of the European Union, Directive on cross-border care adopted, Press Release, 7056/11, 28 February 2011.

  25. 25.

    Kostera 2013, pp. 149–156.

  26. 26.

    CJEU, Case C-512/08 European Commission v. French Republic [2010] ECR I-8833.

  27. 27.

    See Hall 2010.

  28. 28.

    See e.g. FACTBOX-Poland, Eureko meet to settle PZU dispute, Reuters, 17 January 2008, available at: http://www.reuters.com/article/2008/01/17/pzu-idUSL174991720080117.

  29. 29.

    See case Eureko B.V. v. the Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010. While this case applies to the intra-EU issue it has some discussion with respect to the case itself.

  30. 30.

    See Achmea, Dutch insurer Achmea seizes Slovak assets. http://news.achmea.nl/dutch-insurer-achmea-seizes-slovak-assets. 22 May 2013. Accessed 24 February 2014.

  31. 31.

    Eureko B.V. v. the Slovak Republic, PCA Case No. 2008-13, Award on Jurisdiction, Arbitrability and Suspension, 26 October 2010.

  32. 32.

    See e.g. Koivusalo 2013, pp. 93–117.

  33. 33.

    See e.g. Deutsche Sozialversicherung, Social Security as ‘social service provision’ in the Internal Market: not an appropriate concept for Europe, Joint Position Paper of the Umbrella Organisations representing the German Social Security System. http://www.deutsche-sozialversicherung.de/en/europe/documents/verweis_healthcare/Konzept_fuer__Europa_englisch.pdf. April 2005, p. 1. Accessed 24 February 2014.

  34. 34.

    Welti 2011, p. 320; CJEU, Case C-264/01 AOK Bundesverband a.o. v. Ichthyol-Gesellschaft Cordes, Hermani & Co. [2004] ECR I-2493; CJEU, Case C-300/07 Hans & Christophorus Oymanns GbR, Orthopädie Schuhtechnik v. AOK Rheinland/Hamburg [2009] ECR I-4799.

  35. 35.

    Directive 2013/55/EU of the European Parliament and of the Council of 20 November 2013 amending Directive 2005/36/EC on the recognition of professional qualifications and Regulation (EU) No. 1024/2012 on administrative cooperation through the Internal Market Information System, OJ 2013 L 354/132.

  36. 36.

    European Commission, Green paper on the European Workforce for Health, COM(2008) 725 final, 10 December 2008.

  37. 37.

    See the original Rome Treaty of 1957, Article 90 EEC.

  38. 38.

    See e.g. European Commission, Green paper on Services of General Interest, COM(2003) 270 final, 21 May 2003; European Commission, White paper on Services of General Interest, COM(2004) 374 final, 12 May 2004; European Commission, Services of general interest, including social services of general interest: a new European commitment, COM(2007) 725 final, 20 November 2007; European Commission, Staff Working Document, Progress since the 2004 White Paper on services of general interest, SEC(2007) 1515, 20 November 2007; European Commission, Staff Working Document, Biennial Report on social services of general interest, SEC(2008) 2179, 2 July 2008.

  39. 39.

    See e.g. European Commission, Services of general interest, including social services of general interest: a new European commitment, COM(2007) 725 final, 20 November 2007; European Commission, Staff Working Document, Progress since the 2004 White Paper on services of general interest, SEC(2007) 1515, 20 November 2007.

  40. 40.

    European Commission, Staff Working Document, Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest, SEC(2010) 1545 final, 7 December 2010; European Commission, Staff Working Document, Second Biennial Report on social services of general interest, SEC(2010) 1284 final, 22 October 2010; European Commission, A Quality Framework for Services of General Economic Interest in Europe, COM(2011) 900 final, 20 December 2011; European Commission, Staff Working Document, Investing in Health, SWD(2013) 43 final, 20 February 2013; European Commission, Staff Working Document, Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest, SWD(2013) 53 final/2, 29 April 2013.

  41. 41.

    European Commission, Staff Working Document, Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest, SWD(2013) 53 final/2, 29 April 2013, p. 9.

  42. 42.

    This is reflected, for example, in CJEU, Case C-309/99 Wouters a.o. v. Algemene Raad van de Nederlandse Orde van Advocaten [2002] ECR I-1577.

  43. 43.

    This is also reflected in formal reports on the Single Market, such as in M. Monti, A new strategy for the single market. At the service of Europe’s economy and society. Report to the President of the European Commission Jose Manuel Barroso, 9 May 2010. http://ec.europa.eu/bepa/pdf/monti_report_final_10_05_2010_en.pdf, p. 73. Accessed 1 March 2014, where, according to Monti: ‘Since the nineties, the place of public services within the single market has been a persistent irritant in the European public debate.’

  44. 44.

    For example, Finland is already on the United States 301 pressure list due to reference to pricing and promotion of generic medicines; see United State Trade Representative, 2013 Special 301 Report. United States, Washington D.C. http://www.ustr.gov/sites/default/files/05012013%202013%20Special%20301%20Report.pdf. May 2013, p. 48. Accessed 1 March 2014.

  45. 45.

    Council of the European Union, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, 17 June 2013, para 15.

  46. 46.

    See Chap. 2 by Arena in this volume.

  47. 47.

    CARIFORUM-EC Economic Partnership Agreement 2012, available at: http://ctrc.sice.oas.org/Trade/CARIFORUM-ECEPA/CARIFORUM-ECEPA_e.asp, accessed 5 January 2012.

  48. 48.

    See e.g. Krajewski 2012, p. 311.

  49. 49.

    Koivusalo et al. 2009, p. 105.

  50. 50.

    The Accra Declaration states in para 16 that: “ While development is the primary responsibility of each country, domestic efforts should be facilitated and complemented by an enabling international environment based on multilaterally agreed and applied rules. It is for each Government to evaluate the trade-off between the benefit of accepting international rules and commitments, and the constraints posed by the loss of policy space…/…”. http://unctad.org/en/Docs/iaos20082_en.pdf. Accessed 27 February 2014.

  51. 51.

    Mosebach 2009, pp. 65–98.

  52. 52.

    E. Schut, S. Sorbe and J. Hoj, Health care reform and long-term care in the Netherlands. OECD Economics Department Working Papers, No. 1010, 2013. OECD Publishing.

  53. 53.

    Tritter et al. 2009, pp. 132–151; Eronen et al. 2013.

  54. 54.

    See e.g. Blomqvist 2004, pp. 139–155; Dahlgren 2008, pp. 697–715; Tritter et al. 2009.

  55. 55.

    Reynolds et al. 2012, pp. 213–217; N. Timmins, Never again? The story of the health and social care act 2012. Kings Fund and Institute of Government, London. http://www.kingsfund.org.uk/sites/files/kf/field/field_publication_file/never-again-story-health-social-care-nicholas-timmins-jul12.pdf. Accessed 2 March 2014; Klein 2013, p. 237.

  56. 56.

    Okma and Crivelli 2013, pp. 105–112.

  57. 57.

    See Ellis 1998.

  58. 58.

    Eronen et al. 2013.

  59. 59.

    See e.g. Shakarashvili and Davey 2005, p. 15.

  60. 60.

    Koivusalo and Tritter 2014, pp. 93–111.

  61. 61.

    OECD 2013.

  62. 62.

    OECD 2013.

  63. 63.

    This is often impeded by restrictions and limits on the use of competition to lower costs of medicines as a result of trade-related measures in the field of intellectual property rights. Particular attention needs to be paid in this regard to the negotiations of the Transatlantic Trade and Investment Partnership (TTIP), where European technology assessment measures, reference pricing and price controls in the field of pharmaceutical policies have already been raised as a potential concern for the United States. As national health systems—and those who are ill—will, to a large extent, pay for pharmaceuticals (OECD 2008), it is not entirely clear how much of the share of the estimated gains for pharmaceutical markets as result of addressing non-tariff measures in the field of pharmaceuticals would actually be spent on jobs in the EU and what it would imply for prices of medicines paid for by national health systems and consumers in European Union and United States (Ecorys Nederland BV, Non-Tariff measures in EU-US Trade and Investment—An Economic Analysis. http://trade.ec.europa.eu/doclib/docs/2009/december/tradoc_145613.pdf, pp. 99–106. Accessed 2 March 2015.

  64. 64.

    See Chap. 10 by Krajewski in this volume.

  65. 65.

    See e.g. Kumarasamy et al. 2010, pp. 597–602, Another ethical dilemma relates to trade and trafficking of organs.

  66. 66.

    United States—Measures affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body, WT/DS285/AB/R, para 5.67.

  67. 67.

    Luff 2003, p. 213.

  68. 68.

    See e.g. WTO Working Party on Domestic Regulation, Regulatory Issues in Sectors and Modes of Supply, Note by the Secretariat, S/WPDR/W/48/Add.1, 30 April 2013.

  69. 69.

    See e.g. NHS European Office, New EU law on mobility of health professionals across Europe, briefing October 2013, Issue 15. http://www.nhsconfed.org/Publications/briefings/Pages/New-EU-law-health-professionals-move.aspx. Accessed 24 February 2014.

  70. 70.

    See Department of Health, Review of the Regulation of Cosmetic Interventions. https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/192028/Review_of_the_Regulation_of_Cosmetic_Interventions.pdf. April 2013. Accessed 24 February 2014.

  71. 71.

    Philip Morris v. Australia, Notice of Arbitration, 21 November 2011, available at: http://www.ag.gov.au/internationalrelations/internationallaw/pages/tobaccoplainpackaging.aspx. Accessed 24 February 2014.

  72. 72.

    R. Adlung, Trade in health care and health insurance services: the GATS as a supporting actor(?), WTO Staff Working Paper ERSD-2009-15.

  73. 73.

    European Parliament, Opening of negotiations on plurilateral agreement on services, 4 July 2013, http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2013-325. Accessed 1 March 2014, para 5.

  74. 74.

    See e.g. European Parliament, European Parliament rejects ACTA, Press Release, 4 July 2012, available at: http://www.europarl.europa.eu/news/en/news-room/content/20120703IPR48247/html/European-Parliament-rejects-ACTA. Accessed 24 February 2014.

  75. 75.

    Representation of health interests in the context of trade in the European Union has been traditionally based more on trade unions and development-oriented nongovernmental organisations, although nongovernmental organisations working on public health have now followed TTIP and TiSA more. Participation in sustainability impact assessment consultations has been limited, where inclusion of health considerations has been weak or lacking. In the European Union–Canada (CETA) agreement sustainability impact assessment health was taken up, in particular in the Canadian context, but gained little focus due to expectations that services negotiations would not cover health. See e.g. Kirkpatrick C et al., A trade SIA related to the negotiation of a Comprehensive Economic and Trade Agreement (CETA) between the EU and Canada. Trade 10/B3/B06. http://trade.ec.europa.eu/doclib/docs/2011/september/tradoc_148201.pdf. June 2011, p. 125. Accessed 1 March 2014.

  76. 76.

    European Parliament, Opening of negotiations on plurilateral agreement on services, 4 July 2013, http://www.europarl.europa.eu/sides/getDoc.do?type=TA&language=EN&reference=P7-TA-2013-325. Accessed 1 March 2014, para 19 (emphasis by author).

  77. 77.

    See United States—Measures affecting the Cross-Border Supply of Gambling and Betting Services, Report of the Appellate Body, WT/DS285/AB/R, para 5.67.

  78. 78.

    Council of the European Union, Directives for the negotiation on the Transatlantic Trade and Investment Partnership between the European Union and the United States of America, 17 June 2013, para 24.

  79. 79.

    Eronen et al. 2013.

  80. 80.

    In Finland markets for private contractors of publicly funded services have developed in the last 5 years with increasing involvement of large actors in service provision, as well as elements of concentration in the field of provision. See e.g. Eronen et al. 2013; Tritter et al. 2009.

  81. 81.

    See OECD 2013.

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  1. National Institute for Health and Welfare, Helsinki, Finland

    Meri Koivusalo

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    Markus Krajewski

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Koivusalo, M. (2015). Health Systems and Policy Space for Health in the Context of European Union Trade Policies. In: Krajewski, M. (eds) Services of General Interest Beyond the Single Market. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-063-3_15

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