Managing risks in EU health services policy: Spot markets, legal certainty and bureaucratic resistance

Abstract

European Union (EU) healthcare services policy has been largely driven by the European Court of Justice (ECJ) applying the law of the internal market to the previously separate area of healthcare systems. We argue that it opened up two major risks: that health service planning would be disrupted by cross-border flows of patients and professionals, including ostensibly interchangeable professionals or procedures that actually vary in quality; and that health systems would be disrupted by the application of liberalizing EU regulatory frameworks. The threats have largely been managed by four developments. Cross-border flows have largely appeared as spot markets rather than broad competition. States, meanwhile, have managed both regulatory and planning risks by debating and then legislating, which increases legal certainty, and the ECJ has taken the hint and become more cautious in its rulings. Meanwhile, states and health systems alike have implemented a strategy of ‘bureaucratic resistance’ upon discovering how easy it is to comply in only the narrowest ways, thereby limiting affects on systems and regulations alike. The experience testifies to the difficulty of creating and sustaining health markets, but also to the risks of international trade in health services and the amount of effort it takes to manage such risks.

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