UNIVERSITY OF ECONOMICS, PRAGUE FACULTY OF INTERNATIONAL RELATIONS
MASTER’S THESIS
2021 Julia Hammermeister
UNIVERSITY OF ECONOMICS, PRAGUE FACULTY OF INTERNATIONAL RELATIONS
International and Diplomatic Studies
European public health policy – an agent to strengthen the social pillar of the EU
(Master’s Thesis)
Author: Julia Hammermeister
Supervisor: Ing. Ondřej Sankot, Ph.D.
Author’s Declaration
Herewith I declare that I have written the Master’s Thesis on my own and I have cited all sources.
Prague, 10 December 2021
………
Author’s Signature
Acknowledgements
I would like to thank my supervisor Ing. Ondřej Sankot, Ph.D. for his continuous support, understanding and guidance.
Table of Contents
Inhaltsverzeichnis
AUTHOR’S DECLARATION ... 5
ACKNOWLEDGEMENTS ... 6
TABLE OF CONTENTS ... 7
LIST OF ABBREVIATIONS (FIGURES, GRAPHS, TABLES, ETC.) ... 9
INTRODUCTION ... 10
1. FROM COAL AND STEEL TO GREEN DEAL ... 12
1.1. HISTORICAL DEVELOPMENT OF THE INSTITUTIONAL ARCHITECTURE OF THE EUROPEAN UNION ... 13
1.2. WHAT IS SOCIAL AND HEALTH POLICY? ... 23
1.3. EUROPEAN SOCIAL AND HEALTH POLICY APPROACH ... 26
2. EUROPEAN (PUBLIC) HEALTH POLICY – FUTILE OR CRUCIAL? ... 32
2.1. EUROPEAN TREATIES – INCIDENTAL OR INTENDED? ... 34
2.2. CASE STUDY COMPARISON ... 36
2.3. EUROPEAN PHP– FOLLOWING INSTEAD OF MANAGING AN OVERARCHING GOAL? ... 44
3. IS THERE A POSSIBLE SHORT-TERM LEEWAY? ... 47
3.1. A WHOLESOME SUSTAINABLE EUROPEAN APPROACH ... 48
REFERENCES ... 50
LIST OF APPENDICES ... 54
APPENDICES ... 55
List of Abbreviations (Figures, Graphs, Tables, etc.)
CAP Common Agriculture Policy
CFSP Common Foreign Security Policy
DG Directorate-General
ECJ European Court of Justice
ECSC European Coal and Steal Community
EEC European Economic Community
EU European Union
EUnetHTA European Network for Health Technology
Assessment
EURATOM European Atomic Energy Community
EUROPOL European Union Agency for Law
Enforcement Cooperation
FCHR Fundamental Charter of Human Rights
IGC Intergovernmental Conference
JHA Justice and Home Affairs
OMC Open Method of Coordination
PHP Public Health Policy
QMV Qualified Majority Voting
SEA Single European Act
TFEU Treaty on the Functioning of the European
Union
WHO World Health Organization
Introduction
How can we define the European Union? Is there a European social policy? And, is there a European health policy? What is a social/health policy?
Social policy has been defined as political measures focussing on the public life of the individual and the consequences, such as education, employment and health. Therefore, social policy aims at improving these areas by implementing legislative acts.
However, the European Union is a unique association joining 27 member states together on the basis of guiding values, freedoms and a Charter of Fundamental Rights. The beginnings of the European Union (EU) were economically motivated, and the first Treaty ratified, was the Treaty establishing the European Coal and Steel Community in 1951 – by only six members. Since then, the European Union has grown in numbers of Member States and embraces additional policy areas such as common foreign and security policy, agricultural policy, social policy, consumer protection, etc. In order to respond to the additional tasks, the responsible bodies of the EU and its Member States have ratified several Treaties and Treaty reforms aiming at facilitating the policymaking procedure.
With the expansion of the European Union, the EU as such grew closer together. The free movement of goods, services and capital motivated citizens of the EU to embrace these opportunities. To those means, the EU had to respond and implement provision preparing for a shared social realm – and thus including health policy.
The historical and structural legislative basis of the European Union has continuously been updated and amended, with major impacts on European policymaking. Hereinafter, the paper will focus on the development of the European Coal and Steel Community to the European Union in 2021. These findings will illustrate the impact of the Treaty changes to the social policy and thus to the health policy moreover. Afterall, the treaty revisions have left the European Union with only shared competences regarding public health policy. However, the EU continuously pursued implementing recommendations, directives and strategies aiming at improving public health. Continuously, the terminology of social and health policy will be scrutinised. Hereinafter, social policy will be perceived as an umbrella term of all policy areas impinging on the well-being of individuals and the quality of life, thus including all health policies. On the basis of this set definition, current EU health policy acts and drafts will be
examined and further evaluated seeking to identify the influence of the EUs health policy as such and on the European Social Policy. Hereinafter, this paper will contribute to the research on the operation of European Health Policy as a driver for a European Social Policy.
1. From Coal and Steel to Green Deal
The European Union’s legislative architecture is framed to be of a complex character. The multitude of existing institutions and their allocated responsibilities, the technicalities of decision-making procedures and the horizontal and vertical linkages explain this phenomenon.
Since the ratification of the Treaty of Paris (Treaty establishing the European Coal and Steel Community (ECSC)) in 1951, the European Union has grown in numbers of participating Member States and expanded its competences to supplementary subjects of policy. While the motivation of the foundation of the ECSC was primarily economically motivated, it was already then portrayed as “an experiment gradually to be extended to other economic spheres, culminating in a political Europe.” 1 The official website of the European Union lists twenty- two topics as areas of activity, covering among other things Agriculture, Employment and Social Affairs, Foreign and Security Policy, Health, Research and Innovation, Taxation and Transport. 2 The seven treaties following the establishment of the ECSC have made this development possible.
To meet the ambition of this paper, a comprehensive understanding and knowledge of the innerworkings and interrelationships of the supranational institutions of the EU is essential to subsequently answer the research question.
This chapter will thus briefly in a chronological order examine the development of the European Union in order to get a comprehensive understanding of the innerworkings and allocated responsibilities of the institutions. Further, I will depict the social strategy of the European Union. By doing this, I will gradually focus for the purpose of this paper on the health policy of this strategy and illustrate the European Union’s approach to health policy and its legal competences.
1 European Parliament, ed., ‘The First Treaties’, September 2021.
2 European Union, ‘Topics of the European Union’, Text, European Union, 16 June 2016, https://europa.eu/european-union/topics_en.
In contemplation to simplification, the terms European Union and European Communities will be used interchangeably without taking into consideration the different connotation of these two.
1.1. Historical development of the institutional architecture of the European Union
The twentieth century was marked by the two world wars and thus, with the end of the Second World War, the economy was shattered and the climate in Europe was dominated by a constant fear of another aggressive disruption. In 1950, Robert Schuman initiated the project of the creation of a European Coal and Steel Community (ECSC). The proposal suggested to join Germany’s and France’s Coal and Steel production together under one authority, ensuring that Germany could not launch another war due to its material ties to France as well as providing room for economic growth. France and Germany were joined by the Benelux countries and Italy and signed the Treaty in Paris in 1951, its entry into force was in 1952. As previously mentioned, the ECSC was firstly presented as an experiment and thus had a fifty-year term.
Yet, it provided for four supranational institutions which are – with minor amendments – still functional to this date:
• The High Authority represented the executive branch of the ECSC and was merged into the European Commission in 1967 as part of the Merger Treaty,
• the Common Assembly, which already then operated under the name of the European Parliament, represented the legislative branch,
• the Special Council of Ministers preceded the today’s Council of the European Union,
• and the Court of Justice.
The objective of the ECSC was to promote “a peaceful reconciliation and co-existence, economic growth and security and social development.”. To those ends, it administered “free movements of goods and free access to sources of production; permanent monitoring of the market to avoid distortions which could to the introduction of production quotas; compliance
with the rules of competition and the principle of price transparency; support for modernisation and conversion of the coal and steel sectors.”. 3
Disregarding its promise to “raise the standards of living” and to “promote improved working conditions” as stated in Article 3 of the Treaty 4, the legislative framework remained economically motivated.
Just five years after the entry into force of the ECSC, the signatory parties joined together in Rome for the negotiations on a European Economic Community (EEC) and the European Atomic Energy Community (EURATOM).
The European Economic Community marked another step forward in the integration process, as it eliminated custom duties between Member States, established an external Common Customs Tariff, administered common policies for agriculture and transport, created a European Social Fund dedicated to the promotion of employment and worker mobility, set up a European Investment Bank and generally developed closer relations between the Member States. 5 To those ends, the Treaty of Rome established a Common Agriculture Policy (CAP), a transport policy and a common commercial policy. 6 In doing so, it firstly mentioned the four freedoms which still build the guidelines for the single market of the EU today: free movement of goods, capital, services and people. Aside from the extension of policy subjects from hard law to the inclusion of soft law 7 , the EEC put legal provisions governing its executive bodies forward. Hence, the EEC noted the importance of political parties at European level in order to ensure the expression of the Union’s citizens political will (Article 138a). 8 Further, Article 138b authorised the European Parliament to “request the Commission to submit any appropriate
3 European Parliament, ‘The First Treaties’.
4 European Union, ‘Treaty Establishing the European Coal and Steel Community (Consolidated Version)’ (1951).
5 European Parliament, ‘The First Treaties’.
6 European Parliament.
7 Karen M. Anderson, Social Policy in the European Union (London: Macmillan Education UK, 2015), chap. 2, https://doi.org/10.1007/978-1-137-49515-0.
8 Official Journal of the European Communities, ‘Treaty Establishing the European Community’, No C 224/6 § (1958).
proposal on matters on which it considers that a Community act is required”, given a majority of its members is in favour of the motion. 9 Additionally, the EEC ensured the political independency of the Commission to the Parliament. Thus, it laid down in Article 157 that the
“members of the Commission, shall, in the general interest of the Community, be completely independent in the performance of their duties.”. 10 As regards the decision-making procedure, the concept of simple majority, qualified majority and unanimity was correspondingly addressed and formalised.
As to the legal set up of the EEC and the EURATOM, both entities likewise as the ECSC each a Council and a Commission operating as their executive bodies. Thereupon, the Commission was charged with powers for negotiation and proposals regarding legislation and external economic relations. The Council was to be responsible for decision-making and the Parliament was allocated with merely a consultative role. 11
The objective of the EURATOM was to establish an energy union additionally to the economic union and thus aimed to coordinate the supply available to the Member States and establish a dedicated marketplace for the nuclear industry. A safe and reliable source of energy was necessary after the Suez crisis had left the European countries at a shortage of oil and thus nuclear energy seemed to be the solution to the problem. However, with the merging of the executive bodies of all three entities (EURATOM, EEC and ECSC) and the different national interests, the rationale and ambition of the EURATOM quickly faded away. 12
Even though neither the EEC nor the EURATOM, due to the member states’ fear of losing sovereignty, pushed for a vertical development of the integration process, the horizontal development providing for closer statutory ties represented the beginning of a new integrative period and hereinafter marked the pathway for further possibilities as provided for in the Treaty
9 Official Journal of the European Communities.
10 Official Journal of the European Communities.
11 Martina Schonard, ‘Supranational Decision-Making Procedures’, 2021, 6.
12 Richard Stock, ‘Birth of the European Union and Chronology of the Integration’, trans. Julie Gratz (Reperes, 2011), shorturl.at/gpLV1.
of Brussels. In reference to social policy, Anderson notes that “[t]he treaty of Rome’s provisions concerning social policy were thus an invitation to institutional innovation and expansion”. 13 The year 1965 marked the history of the EU’s architecture known today. Member States of the EEC, the EURATOM and the ECSC met in Brussels and agreed to merge the executive bodies of all three entities into two single bodies:
1. The Commission of the European Communities (representing the High Authority of the ECSC, the Commission of the EEC and the Commission of the EURATOM), and 2. the Council of the European Communities (the Special Council of Ministers of the
ECSC, the Council of the EEC and the Council of the EURATOM).
With the creation of these two executive bodies, the Merger Treaty counted five common European institutions in total. 14
Further, the Treaty of Brussels merged the legal framework of the Communities into one by amending and repelling laws where necessary as well as introducing new articles. By thus, establishing one single official text. Hereinafter, as regards the Council, decision-making concerning common institutions, budget and administration was harmonised and the concepts of simple majority, qualified majority and unanimity introduced by the EEC and the EURATOM were generally maintained and further harmonised. 15 For the Commission, the Brussels Treaty set the number of members to 9, the general legal provisions on the functioning as well as the political independency clause of the EEC were taken over, while providing for a possible censuring of the Commission’s management. Additionally, the Merger Treaty introduced one single administrative budget for the European Communities covering the Parliamentary Assembly and the Court of Justice. 16
13 Anderson, Social Policy in the European Union, chap. 2.
14 EUR-Lex - Access to European Law and European Union, ‘Treaty of Brussels (Merger Treaty) Summaries of EU Legislation’, 2018, https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=LEGISSUM%3A4301863.
15 EUR-Lex - Access to European Law and European Union.
16 EUR-Lex - Access to European Law and European Union.
Contrarily to the EEC and the EURATOM, the Merger Treaty represents a great step towards a deeper Union integration. Even if the Merger Treaty did not either provide for a greater vertical integrative development, it yielded in a legal framework creating the institutional bodies of today: the European Commission and the Council of the European Union.
During the twenty years between the Merger Treaty of 1965 and the Single European Act of 1986, the Member States to the European Communities joint together several times to pass several bills. Hereinafter, the legal framework of certain financial provisions was amended in 1975 and, by those means, extending the Parliaments powers. 17 The court of auditors, responsible for financial management of the Community, was established, the election procedures of the Parliament were modified, and direct universal suffrage was introduced with the Act of 20 September 1976, six new Member States (UK, Denmark and Ireland in 1973, Greece in 1981, Portugal and Spain in 1986) and finally, the EU budget was revised at the Fontainebleau meeting in 1984. 18
One year later, shortly before the negotiations about the Single European Act, France, Germany and the Benelux countries met in Luxembourg to discuss the Schengen Agreement targeting the abolitions of border controls. Several Member States were to join the agreement over the years e.g., Greece joint in 1992, Sweden, Finland and Denmark in 1996 and even non-signatory parties to any treaty related to the European Communities such as Iceland and Norway joint the Schengen Agreement in 1996.
Following the Fontainebleau meeting, an intergovernmental conference (IGC) was to be scheduled in order to re-discuss the “powers of the institutions, the extension of Community activities to new areas and the establishment of a ‘genuine’ internal market.” (Sokolska 2021a).
The Single European Act resulted of the IGC and symbolised the primary significant amendments to the Treaty of Rome and thus, represented the first vertical and horizontal development of the competences and innerworkings of the European Communities.
Keeping in line with the requirements of the IGC to extend the Communities’ activities to new areas and to revise its powers, the SEA introduced Monetary Policy, Social Policy, Economic
17 Schonard, ‘Supranational Decision-Making Procedures’.
18 Ina Sokolska, ‘Developments up to the Single European Act’, ed. European Parliament, 2021.
and Social Cohesion, Research and Technological Development, Environment and Cooperation in the field of foreign policy as competences. 19 It pushed further on the creation of an internal market and set the 1 January 1993 as operational deadline. Finally, the SEA extended Qualified majority voting (QMV) to laws regarding the internal market, however, it excluded taxation, the free movement of persons and employee rights of QMV. 20 Hereinafter, policy areas covered by QMV under the SEA are as followed: common customs tariff, free movement of capital, maritime and air transport, internal market, economic and social cohesion, social policy (occupational health and safety and occupational social dialogues), research and development, environment and common foreign policy. 21 The Parliaments power was also enlarged with the implementation of the SEA: the Parliament was henceforth responsible for authorisation of accession and association treaties. 22
The Single European Act endorsed a more integrative approach to the structure of the European Communities and established a horizontal and vertical development. The introduction of six new competences acknowledges this statement. Furthermore, it shows that the Member States deviated from the economic ideology of the Treaty of Rome clinging to state sovereignty towards a comprehensive structure incorporating important sectors such as social policy, environment and foreign policy. The year 1986 introduced with Portugal and Spain two new Member States to the Community, making it to a count of 12 Member States in total.
Since the deadline of the completion of the internal market was set to January 1993, the Member States met again in Maastricht in December 1991 to discuss possible further reforms. Likewise to the three other treaties, the Maastricht Treaty pursued a deeper integration for the European Communities and heralded in one institutional structure combining the Council, the European Parliament the European Commission, the Court of Justice and the Court of Auditors.
Additionally to the European Investment Bank and the European Investment Fund, the
19 David Phinnemore, ‘2. The European Union: Establishment and Development’, in European Union Politics, by
David Phinnemore (Oxford University Press, 2019), 11–30,
https://doi.org/10.1093/hepl/9780198806530.003.0002.
20 Anderson, Social Policy in the European Union, chap. 2.
21 EUR-Lex - Access to European Law and European Union, ‘Single European Act - Summaries of EU Legislation’, 2018, Whereas the recommendations refer to primary and non-binding regulations.
22 Schonard, ‘Supranational Decision-Making Procedures’.
Maastricht Treaty created a European System of Central Banks and a European Central Bank.
As to the decision-making procedures, the Member States agreed to expand the Councils responsibilities and introduced the co-decision procedure. 23 Whereas the SEA extended the Parliaments power to authorisation over EU-wide treaties, the Maastricht Treaty added the ratification of international treaties to the competences of the Parliament. 24 The treaty foresaw the necessity of advisory powers and thus created the Economic and Social Committee and the Committee of Regions. 25
Yet, the most significant change to the Union’s structure was the introduction of the pillar system. The Maastricht Treaty divided the Union’s common provisions into three organisational pillars dubbed 1. The Community pillar under which the European Communities (EC, ECSC and EURATOM), 2. The Common Foreign Security Policy (CFSP) pillar, 3. The Justice and Home Affairs (JHA) pillar. The pillar system aimed at promoting, implementing and enhancing the intergovernmental character of the European Union by defining the community’s policy definition, structuring its mode of operation and expanding its competences with the use of the subsidiarity and the proportionality principle.
Hereinafter, the Maastricht Treaty enabled the European Communities to extend its competences from policy areas based on an economic motivation and tied to the single market over to foreign security policy and social policy. Especially the areas covered by the third pillar prove a step towards a more inclusive and integrative development of the Union. Therefore, the Member States agreed to launch a common asylum policy, control the Union’s external borders and thus illegal immigration, create EUROPOL, and safekeep the citizens security in general.26
23 Schonard.
24 Schonard.
25 Ina Sokolska, ‘The Maastricht and Amsterdam Treaties’, 2021.
26 Sokolska.
Even though the UK blocked a common social policy, the remaining Member States moved forward and agreed upon a Protocol for Social Policy based on the revised Social Chapter of the former European Economic Community and negotiated by European trade unions and employers. 27
Just two years before the signing of the Amsterdam Treaty, Austria, Finland and Sweden joint the EU. In 1997, the Amsterdam Treaty entered into force and strengthened the legal framework and reinforced the Union’s powers in the field of foreign policy. Hereinafter, the UKs opt-out of the Social Protocol was revoked and the updated Protocol was integrated into the Treaty without any provisions for repealing. The Member States further agreed to integrate their commitment to human rights by requiring the fulfilment and upholding of these principles a pre-condition for joining the Union. And finally, the Amsterdam Treaty foresaw a greater merging of the member states by integrating the Schengen Agreement into its legal framework.2829 Against the backdrop of former and future enlargement, the Amsterdam Treaty attempted to facilitate decision-making by firstly simplifying and extending the co-decision procedure and secondly increasing the Parliaments competences over appointment of the Commission. 30
As previously mentioned, the European Union grew in numbers of member states from six countries in 1951 to twenty-five in 2004. The several treaties aimed at coping with this growth and preparing the Union for following enlargement. Especially the Amsterdam Treaty saw this as one of its main tasks. However, the Member States realised that the achievements made at Amsterdam were not sufficient and that the Union needed further institutional reforms. Notably the forthcoming accession of post-soviet states such as Poland, Czech Republic, Hungary, Latvia, Lithuania, Estonia and Slovakia demonstrated the need for tools to properly execute and implement the provisions and values prescribed in the treaties. Most of the countries which
27 Anderson, Social Policy in the European Union, chap. 2.
28 Stock, ‘Birth of the European Union and Chronology of the Integration’.
29 Sokolska, ‘The Maastricht and Amsterdam Treaties’.
30 Schonard, ‘Supranational Decision-Making Procedures’.
were to join the Union in future were rather small in population size and by those means possibly encumbering the decision-making process.
Hence, the Treaty of Nice of 2001 focused more on institutional changes then on policy-related issues. By those means, it introduced a new system for weighting of votes in the Council. More precisely, it increased the number of allocated votes for all Member States and, respecting the principle of democracy, added a “demographic ‘safety net’” which was to verify that 62% of the whole population of the Union was in favour of the notion. 31 As for the Commission, every Member States was henceforth to be represented by one Commissioner and the Parliament was incorporated into the competent bodies for the co-decision procedure. 32
Overall, the Treaty of Nice contained many amendments to the legislative structure and mode of operation of the EU. Nevertheless, the provisions covered in 2001 did not cope with the difficulties the enlargement brought about and the EU was continuously pushed into a deadlock when attempting to reach a decision. The Member States agree to embody a declaration into the Treaty text covering “the future of the Union”. This declaration states that the Council should draft a “declaration containing appropriate initiatives for the continuation of this process [i.e., the completion of institutional changes necessary for the accession of new Member States]” at a meeting in Laeken/Brussels in 2001. Hereinafter, the council should readdress the distribution of powers between the EU and the Member States and the implementation of the Charter of Fundamental Rights of the EU as well as it was tasked to review the mass of Treaties with the objective of clarification. 33
The drafting of the Lisbon Treaty in 2007 is the result of several failed attempts to meet the requirements set in Brussels in 2001. In the same way as the Treaties of Maastricht, Amsterdam and Nice, the Lisbon Treaty aimed at reforming the already existing treaties. As regards the delimitation of powers, the Treaty text provides for a division of competences within the Union:
exclusive competences over areas “in which the EU alone is able to legislate and adopt binding acts”, shared competences whereas the EU and its Member States “are able to legislate and
31 Ina Sokolska, ‘The Treaty of Nice and the Convention on the Future of Europe’, 2021, 5.
32 Sokolska.
33 Official Journal of the European Communities, ‘Treaty of Nice Amending the Treaty on European Union, the Treaties Establishing the European Communities and Certain Related Acts’, 2001/C 80/01 § (2003).
adopt legally binding acts” or supporting competences allowing European intervention only “to support, coordinate or complement the action of EU countries. Legally binding EU acts must not require the harmonisation of EU countries’ laws or regulations”. 34 Policy areas where the EU has exclusive competences are the customs union, the establishing of competition rules necessary for the functioning of the internal market, monetary policy, common commercial policy, common fisheries policy and the conclusion of international agreements under certain conditions. Shared competences cover several policy areas including certain aspects of social policy and shared safety concerns in public health matters as defined by the Maastricht Treaty.
Supporting competences address policy areas such as protection and improvement of human health, industry and civil protection. 35
Following, the recognition of the EU as a full legal personality, the pillar structure introduced by the Maastricht Treaty is henceforth abolished, joining all policy areas together. Therefore, the decision-making procedure is amended accordingly, and the ordinary legislative procedure is instituted. Correspondingly, national law is hereafter bound to comply with Union law and the Charter of Fundamental Rights is integrated to it. Thus, Article 2 of the Lisbon Treaty states the Union’s values: Human dignity, Freedom, Democracy, Equality, Rule of law and Human rights. 36
By now, the European Union unites 27 Nation States in an economic and political union which is set up on the basis of binding and non-binding legal provisions in the form of EU treaties (primary legislation), directives and regulations (secondary legislation), and ECJ ruling concerning the interpretation of EU law. The Council of the EU, the European Commission, the European Parliament and the ECJ are the enforcing actors and safe keepers of these provisions. All legal provisions should reflect the interest of each Member State of the Union.
Yet, the domestic policy preferences of a Member State change constantly, simply explained by the nature of electoral politics. Furthermore, the election of the European Parliament ascribes a variability to these proceedings as well. To sum up, the Council of the EU, who is the agenda
34 EUR-Lex - Access to European Law, ‘Division of Competences within the European Union’, 26 January 2016, https://eur-lex.europa.eu/legal-content/en/TXT/HTML/?uri=URISERV:ai0020&from=en.
35 EUR-Lex - Access to European Law.
36 Official Journal of the European Communities, ‘Consolidated Version of the Treaty on European Union’, C 326/15 § (2009).
setter of the EU’s policy direction, is influenced by the outcome of electoral politics, alternating Heads of States and Prime Ministers and the election of the European Parliament faces the same conundrum. Hence, the difficulty of European Union politics is not only to jointly include all member states’ interests but to define them in the first place. Among other things, this complexity justifies the length of the European policymaking process. European policymaking might even outlast national electoral terms, such as the finalisation of Directive 2015/720.
Discussions about this Directive were launched in 2011 and were eventually finalised in 2015.37 As previously mentioned, these several varying factors influence the policymaking process.
Therefore, European policies are mostly of a more technical and less political characteristic than many national policies. Political European policies are based on the guiding values of the Union: Human dignity, Freedom, Democracy, Equality, Rule of law and Human rights. And these values provide a legal loophole for the executive powers of the Union to pursue even very political legislative proposals.
This overview gives a clear picture of the structural and political development of the European Union starting with the Treaty of Rome in 1957 as a purely economically motivated Treaty establishing the European Coal and Steel Community into the European Union built on six guiding values revolving around the Charter of Fundamental Rights. However, even though the EU’s competences clearly expand over economic matters, the European social policy and especially its health policy evolved insufficiently over the years. The following part will be dedicated to the terminology of Social and Health Policy.
1.2. What is Social and Health Policy?
When examining the terminology of ‘social policy’, Richard M Titmuss defines ‘policy’ as
“principles that govern action directed towards given ends” 38, the general definition of the Oxford Learner’s Dictionary follows a similar logic and refers to ‘policy’ as “a plan of action
37 European Parliament, ‘Legislative Train Schedule’, European Parliament, November 2019, https://www.europarl.europa.eu/legislative-train.
38 Richard M. Titmuss, ‘What Is Social Policy?’, in Welfare States: Construction, Deconstruction, Reconstruction Volume 1, by Stephan Leibfried and Steffen Mau, An Elgar Reference Collection (Cheltenham, UK;
Northhampton, MA: Edward Elgar, 2008).
agreed or chosen by a political party, a business etc.”. 39 If a policy is hereinafter a constructed action initiated by a political party, a business or – for the purpose of this paper – by a government and that this action aims to fulfil certain requirements laid down as its objectives, a question addressing the terminology of ‘social policy’ arises.
The attempt of justly defining the term ‘social policy’ is complicated for several reasons.
Contrarily to economic and monetary policy, social policy coincides several meso-policy areas.
In his article “What is Social Policy?” (2008) Titmuss criticises the delimitation of economic and social policy as both influences, and is influenced by the other.
Article 9 of the TFEU acknowledges the interrelation of both policy areas by describing the necessity of the achievement of the Union’s responsibility to promote economic, social and territorial cohesion as intrinsic factors for the EU’s enduring success and development. 40 Lamping (2005) pursues this train of thought further by criticising the European notion of social policy as a market enabler and completer rather than an “intrinsic element of the integration process. 41 Additionally, Titmuss perceives social policy as a “set of public policies that influence the well-being and life chances of individuals”. 42 However, according to Titmuss, the successful achievement of a positive influence on the well-being of individuals is based on the choices of the actors implementing the policy.
Thus, even social policies heralding in negative effects on the citizens would still be part of this category. The implementation mode of social policies might further vary and eventually characterise the model of social policy the actors will embrace. Social policies might be of a negative integration or a positive integration character. In her book “Social Policy in the European Union”, Anderson makes use of a theory authored by Scharpf, whereas negative integration refers to policies removing barriers while positive integration establishes common
39 Oxford University Press, ed., ‘Policy (Noun)’, in Oxford Learner’s Dictionary, 2021.
40 Anderson, Social Policy in the European Union.
41 Monika Steffen, ed., Health Governance in Europe: Issues, Challenges, and Theories (London; New York:
Routledge, 2005), 21.
42 Titmuss, ‘What Is Social Policy?’
policies applicable to all member states, e.g., minimum wages.43 Further, Anderson notes that the contrasting character of negative and positive integration can also be categorised into conventional and non-conventional social policies. By those means, conventional social policy describes distributive policies whereas non-conventional providing, for instance, legislative frameworks and regulatory boundaries for implementation guidance for conventional policies.
The EU’s social policy is to be classified as non-conventional social policy. 44
Hereinafter, we have defined social policy as a plan of actions, laid out by the key actors, i.e., the governing parties, impinging on the quality of life of individuals. These actions do not necessarily elicit positive outcomes. Furthermore, we have understood, that social policy is not a construct separated from remaining policies but rather interacts with them. However, if the leitmotif of social policy lies within the well-being and the quality of life of the individual, the foremost important policy field associated to social policy ought to be health policy.
The World Health Organization states that “health policy defines health goals at the international, national or local level and specifies the decisions, plans and actions to be undertaken to achieve those goals”. 45 Within the broader understanding of health policy, lies according to Steffen et al. and Anderson various narrow fields of policies including public health policy. If keeping with the definition of the WHO, public health policy is “the art and science of preventing disease, prolonging life and promoting health through the organized efforts of society”. 46 Anderson’s definition of public health policy assents to the WHO’s definition by equally putting forward the necessity of promoting healthy behaviour, ensuring a healthy human environment and controlling the spread of diseases. 47 Steffen et al. however further develop this definition by including that public health policy is to be influenced from outside or from the margin of “the institutional borders of the healthcare sector”. 48
43 Anderson, Social Policy in the European Union, chap. 1.
44 Anderson, chap. 1.
45 ‘World Health Organization’, 2021, https://www.euro.who.int/en/home.
46 ‘World Health Organization’.
47 Anderson, Social Policy in the European Union, chap. 7.
48 Steffen, Health Governance in Europe, 9.
By those means, similarly to social policy, health policy refers on a macro-level to the establishment of roadmaps with the aim of achieving fixed health goals.
Thereof, we can determine social policy as the all-inclusive umbrella term for all policies influencing the quality of life of the individual. Hence, health policy is to be defined as a subordinated policy field to the latter, pursuing the equal objective as social policy, but with a narrower focus – instead of emphasising the comprehensive quality of life and well-being of the individual, health policy highlights the state of health assimilated to the quality of life. In a like manner as social policy, health policy comprises different meso policy fields determining the political direction, the goals, the strategy and the instruments. Occupational health, healthcare systems and public health policy are examples for these meso policy fields.
Public health policy is based on the political direction and defines, as aforementioned, the goals.
The implementation of a health policy strategy and the establishment of instruments ought to follow the guidelines of the political direction aiming to achieve the goals set by the public health policy. Hereinafter, for a health policy to be competent, its public health policy needs to be clearly defined.
In the following part, the European approach to social policy, (public) health policy will be examined on the basis of the basis of these definitions.
1.3. European Social and Health Policy Approach
The overview of the EU’s developing structure over the years shows that the Union as a legal personality expanded its influence over quasi all policy areas, however, the social policy remains a policy field widely governed by soft law and negative integration at the most. The economic leitmotiv which guided the Member States of the EU combined with the fear of losing sovereignty and voters’ trust allowed for little concessions in social policy. The significant high cost the implementation of positive integration - social policies represents another complication for the European Union and is proven by the fact that little amount of the budget is actually allocated to the principle DGs driving EU social policy (EMPL, SANTE). 49 The “negative- integration” character of the EU’s social policy can thereof not only be explained by the
49 Anderson, Social Policy in the European Union, 30.
complex policymaking procedure, national electoral politics and lacking exclusive competences, but also by a financial constraint. Continuously, in order to fully comprehend the reasons and motivations for this deterrence of implementing social policies, we must also examine the European understanding of social policy and health policy accordingly. As previously mentioned, European social policy is non-conventional for it rather regulating than employing social policy.
The social policy objectives laid down in the TFEU in Article 151 refer to “promoting employment, improving working and living conditions, equal treatment of workers, adequate social protection according to need, social dialogue, developing human resources aimed at achieving a high and sustainable level of employment as well as combating exclusion”. 50 This understanding of Social Policy keeps in line with the general aforementioned definition but pays special attention to the exact fields this policy comprises. However, particular attention must be paid to these mentioned fields.
According to Article 151 of the TFEU, the social policy of the European Union revolves around the social needs related to the employment realm. Yet, Article 9 of the same Treaty includes “a high level of education, training and protection of human health” as social requirements to comply and respect the Charter of Fundamental rights. 51 The EU aims to protect human health by:
Figure 1: EU's Health Strategy
50 EUR-Lex - Access to European Law, ‘Glossary of Summaries - EUR-Lex’, 2021, https://eur- lex.europa.eu/summary/glossary.html.
51 EUR-Lex - Access to European Law.
• “Prevent[ing] illness/disease by promoting healthier lifestyles;
• Facilitat[ing] access to better and safer healthcare;
• Contribut[ing] to innovative, efficient and sustainable health systems;
• Deal[ing] with cross-border threats;
• Keep[ing] people healthy throughout their lifetimes;
• Harness[ing] new technologies and practices”.
Source: (EUR-Lex - Access to European Law 2021).
As a response to the COVID-19 pandemic, the Commission adopted the EU4Health programme which adds (1) preparing for health crises in terms of medical supply, sufficient health staff and experts and increased surveillance, (2) strengthening health systems to withhold short- and long-term health crises, and (3) reforming the pharmaceutical market by making medicines and medical devises available and affordable to the health goals pursued by the EU. 52 As to the competences, the EU has only shared and not exclusive competences in nine policy areas associated to social policy including health and safety of workers and public health 53 (view box 1.1).
The legislative basis of the European Union does not provide for any exclusive competences to initiate public health policies. Mossialos et al. trace the development of the European social policy without any exclusive competences back to the ‘spill-over’ effect. Mossialos thus investigates the reasons for the establishment of minimum standards in occupational health and safety. The author concludes that the fear of possible social and ecological dumping and the goal to create a “level playing field” were economically motivated and hereinafter created European social policies. 54
Ergo, European policymaking is not solely restricted to direct policy making. As Duncan puts forward in his paper “Health policy in the European Union: how it’s made and how to influence it”, various policy areas are used for the implementation of European health policy or even unintentionally influence the latter. 55 In order to achieve the social policy objectives of the TFEU, the executive bodies of the EU resorted to both hard and soft law. As regarding ‘hard’
law, the EU follows a rather regulatory and harmonizing approach for instance by expanding qualified majority voting to occupational health and safety with the Single European Act 56 and
52 EUR-Lex - Access to European Law.
53 EUR-Lex - Access to European Law.
54 Elias Mossialos and Martin McKee, EU Law and the Social Character of Health Care, Work & Society, no. 38 (Brussels; New York: P.I.E.-Peter Lang, 2002).
55 B. Duncan, ‘Health Policy in the European Union: How It’s Made and How to Influence It’, BMJ 324, no. 7344 (27 April 2002): 1027–30, https://doi.org/10.1136/bmj.324.7344.1027.
56 Anderson, Social Policy in the European Union, 61.
setting minimum standards. For the implementation of ‘soft’ law, the EU resorts to the Open method of coordination introduced by the Lisbon Treaty, which is mostly applied – due to its non-binding nature – for highly discussed and complex policy fields such as social policy. The OMC operates by using peer pressure for prompting non-compliant member states to implementation. For instance, Anderson mentions the use of the OMC for the promotion of pension reforms in the member states. 57 However, additionally to these examples of direct hard and soft social policy legislations, the European executive bodies pursued indirect and unintentional social policy making. Hence, the recently ratified and discussed trade agreements include human rights clauses, common safety standards and pharmaceutical clauses. 58 Finally, the European definition of social policy and (public) health policy is rather enigmatic and technical and vague at the same time. Instead of defining the social realm comprehensively including the goals, objectives and influencing tools, the European understanding of both terms refer to a set of superficial goals without providing the corresponding tools and instruments.
The superficiality of the goals is even more complicated combined with the shared competences the EU upholds.
A recently published study by the Policy Department for Economic, Scientific and Quality of Life Policies, Directorate-General for Internal Policies (2019) drafted a proper definition of public health policy:
“[…] the aim of public health is to create the enabling conditions to promote health, understood as a state of complete physical, social and mental well-being. Public health policy therefore covers, but also goes beyond issues concerning health systems and healthcare delivery.
Central to the practice of public health is the recognition that health and well-being is shaped by multiple social, economic, political, environmental and biological determinants. […]
57 Anderson, 93.
58 Duncan, ‘Health Policy in the European Union’.
The most prominent determinants are highlighted below:
• Social, or socio-economic, determinants of health
• Environmental determinants of health
• Health system determinants of health
• Commercial determinants of health
• Individual determinants of health” 59
This interpretation of public health policy delivers much more clarity on the European policy approach by addressing the field from a technical and comprehensive point of view, acknowledging the cross-sectoral and interlinked character of public health policy to other policy areas. However, even though the effects of “the conditions in which people are born, grow, live, work and age” (social, or socio-economic determinant) on human health are indisputably unquestionably, to meet the purpose and the envisaged length of this paper, the analysis will only take health system determinants into account. According to Pushkarev et al.
health system determinants describe “the health impacts of different approaches to organising, resourcing and operating health systems.” The evaluation of an effective health system, as stated by the authors, is based on the capability of delivering “quality services to all people, when and where they need them without causing financial hardship.” 60
Hereinafter, we can deduce, that the European approach to social policy and (public) health policy is based on a complex and intricate treaty collection which instituted in the 50s and continuously amended and completed – politically and structurally, i.e., Treaty of Rome, Maastricht Treaty, Treaty of Amsterdam, Lisbon Treaty. Although the EU started off as an economic merger aiming to maintain peace in the region, developed into a political union with supranational features influencing quasi every policy area – whether indirectly, directly or unintentionally. The European health policy has evolved over the years from a market enabler, located at the margin of the EU’s zone of interest, into a predominant policy field.
59 Nikolai Pushkarev, Fiona Godfrey, and Sascha Marschang, ‘EU Public Health Policies. State of Play, Current and Future Challenges’, ed. European Parliament and Policy Department for Economic, Scientific and Quality of Life Policies Directorate-General for Internal Policies, September 2019, 52.
60 Pushkarev, Godfrey, and Marschang, 12.
The following chapter will crucially focus on the technicalities of the implementation approach of the European public health policy and define its strong and weak characteristics.
2. European (public) health policy – futile or crucial?
Research on the European health policy attempt is extensive, consistent and contradictory. For starters, most scholars agree that the structural framework of the European Union does not provide for a European health policy and that it principally ought not to be considered a genuine Community policy based on the lack of exclusive competences. However, the same scholars continue stating that the executive bodies have developed a moderate yet complicated and incomplete health policy. 61 Nevertheless, the evaluations of the success of this said policy differ drastically from each other. After a thorough analysis of “[t]he theoretical basis and historical evolution of health policy in the European Union” (2002), Mossialos and McKee conclude that
“[…] there is no all-encompassing strategic health policy and there is a need for a new Community health policy. It must be one that has at its foundation a new and comprehensive Treaty-based definition of health policy and the EU’s role therein […].”62
While the terminology of an efficient health policy applied in this paper agrees with Mossialos and McKee on the grounds that European health policy lacks in clarity and strategy, the subsequent conclusion favouring the dissolution of the current framework and the establishment of a new health policy - on one hand – dismisses the developments achieved hitherto, and – on the other hand – deducts a drastic quick-fix to the problem by resorting to a new policy instead of improving the existing system. Other scholars, such as Anderson, identify European health policy to be coherent from the beginnings on, although with room left for improvement.
Accordingly, Anderson judges, among other things, the decision to include human health and life as a substantial factor for trade policies within the Treaty of Rome (Art. 36 EEC/TFEU) to be the beginning of a coherent European health policy. 63 On a similar note, Lamping uses
61 Mossialos and McKee, EU Law and the Social Character of Health Care; Anderson, Social Policy in the European Union; Steffen, Health Governance in Europe; Duncan, ‘Health Policy in the European Union’; Scott L. Greer, ‘The Three Faces of European Union Health Policy: Policy, Markets, and Austerity’, Policy and Society 33, no. 1 (March 2014): 13–24, https://doi.org/10.1016/j.polsoc.2014.03.001.
62 Mossialos and McKee, EU Law and the Social Character of Health Care.
63 Anderson, Social Policy in the European Union, 172.
Art. 3, TFEU – setting health policy as a Community objective – as supporting argument. 64 As regards health policy as a Community objective, Greer pursues this reasoning even further, based on Art. 168 (TFEU), stating that the determination of health policy as a Community objective as well as the mere existence of the Article would sufficiently demonstrate the EUs involvement and the possible influence of health policy on other policy fields. 65 To all intents and purposes, article 168 of the TFEU provides the EU with a significant set of loopholes by introducing the all-Union-policy-approach. Thereof, Art. 168 obliges the EU to ensure “a high level of human health protection […] I the definition and implementation of all Union policies and activities.”66 Thus, even though the EU merely shares competences with the Member States, Art. 168 enables the executive bodies to invoke the Health in all Policies (HIAP) approach to all other policies and thereby indirectly expanding the influence of the EU health policy.
Additionally, the EU is thenceforth admissible to set harmonising standards for “organs and substances of human origin, blood and blood derivatives pharmaceuticals, and measures in the veterinary and phytosanitary field.” 67
Nevertheless, Mossialos and McKee make a valid point when arguing that the lack of a straightforward Treaty-basis intensifies the complexity of grasping the legal basis for health policy.
Thus, in order to get a comprehensive understanding of the state of play, the next part will briefly summarise the available treaty basis currently in force addressing health policy issues.
64 Steffen, Health Governance in Europe, 20.
65 Greer, ‘The Three Faces of European Union Health Policy’, 15.
66 European Union, ‘The Treaty of the European Union and the Treaty on the Functioning of the European Union’
(1958), https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=OJ:C:2016:202:FULL&from=EN.
67 Bart Vanhercke, Slavina Spasova, and Boris Fronteddu, Social Policy in the European Union: State of Play 2020, 2021.
2.1. European Treaties – incidental or intended?
Figure 2: Treaty-basis on health policy
Article Content
Article 35, FCHR
• “Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices.”
Article 56, TFEU Freedom to provide services
• “[…] restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended.”
• Case C158/96 Kohll: The ECJ ruling states that an exclusion of the public health sector, “as a sector of economic activity and from the point of view of freedom to provide services, from the application of the fundamental principle of freedom of movement” shall not be permitted.
Art. 95(3), TFEU Community policies
• “The Commission, in its proposals […] concerning health, safety, environmental protection and consumer protection, will take as a base a high level of protection […]”
Art. 114, TFEU Single Market
• The functioning of the internal market shall be considerate to a high level of health, safety, environmental protection and consumer protection;
• The Commission shall, on demand of a Member State, regarding a specific problem on public health, given the occurrence of prior harmonisation measures, examine the necessity of proposing appropriate measures to the Council, e.g., Tobacco Products Directive (2014/40EU) and alcohol-related harm.
Art. 153, TFEU Social Policy
• The Union shall carry out actions, support or complement the actions of the Member States to the improvement in particular of
the working environment to protect workers’ health and safety (OMC);
• The EP and the Council may adopt soft law as well as minimum requirements for gradual implementation respectful of the functioning of the internal market.
Art. 168, TFEU Protection of Public Health
• HIAP: The Union policies and activities must respect a high level of human health protection when defining and implementing all Union policies and activities;
• Political direction of complementary Union activities to Member States ought to pursue the “improv[ement] of public health, preventi[on] of mental illness and diseases, and obviati[on of]
sources of danger to physical and mental health;
• Union’s action shall be limited to encouragement for cooperation between Member States aiming at improving cross-border health services and can – if need be – support those actions. For the promotion of Member States coordination, the Commission may resort to any useful initiative e.g., aiming to establishing guidelines and indicators, exchanging best practices and preparing monitoring and evaluation procedures” (OMC).
Source: (Pushkarev, Godfrey, and Marschang 2019; European Union 1958)
This outline demonstrates, once again, the weakness of the legal framework of European PHP.
The European executive bodies are primarily restricted to implement soft law and make use of the OMC. Article 114 presents however the possibility for the EU to disguise a health policy as an internal market problem, and thus, implementing hard law.
In the following part, ongoing and drafted health policy acts will be scrutinised based on the applied treaty-basis, the competence, and finally, against the backdrop of the state of health
assimilated to the quality of life. A published summarising catalogue of EU legislation in the field of Public Health, accessible on EUR-Lex68, will be used as database.
2.2. Case study comparison
(1) Patient’s rights cross-border healthcare
As defined in the Charter of Fundamental rights, EU citizens have “the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices.” 69 After the ECJ ruling on Case C-158/96 Kohll in 1998, EU citizens may seek healthcare outside of their domestic nation state.
The administrative framework for the legislative transposition into EU law is provided by Directive 2011/24/EU on patients’ rights in cross-border healthcare. The directive defines requirements and obligations of the Member States as well as of the patients.70
Hereinafter, the only provision enabling the Member State of the patient to refuse cross-border healthcare must be based on the capability of the Member State to deliver the necessary healthcare within the respective medical time limit. 71
The directive states as its objective an increase in cooperation between national healthcare systems. A study published by the European Commission in 2017 evaluates the European cross- border cooperation on the basis of seven case studies.72 Their findings demonstrate that a strengthened cross-border cooperation on health improves the quality of healthcare provisions and enhances management of shortages and failings owing to mutual enrichment. However, the
68 EUR-Lex - Access to European Law, ‘Public Health’, accessed 10 December 2021, https://eur- lex.europa.eu/summary/chapter/29.html?expand=2905%2C290501%2C290502%2C2906%2C290601%2C2906 02%2C2907%2C290701%2C290703%2C290704%2C290707%2C2908%2C290801%2C2909%2C290901%2C 290902%2C290903%2C290904%2C290905%2C2910%2C2911%2C291103%2C2912%2C291201%2C291202
%2C291203%2C2913%2C291301%2C291302%2C2999.
69 Official Journal of the European Communities, ‘Charter of Fundamental Rights of the European Union’, C 364/1
§ (2000).
70 EUR-Lex - Access to European Law, ‘Healthcare in Other EU Countries - Patients’ Rights’, n.d., https://ec.europa.eu/health/cross_border_care/overview_en.
71 EUR-Lex - Access to European Law.
72 European Commission. Directorate General for Regional Policy., European Cross-Border Cooperation on Health: Theory and Practice. (LU: Publications Office, 2017), https://data.europa.eu/doi/10.2776/271537.
same study highlights, on the one hand, the complex procedures necessary for a successful and effective cooperation as regards administrative issues, such as health insurance entities, health professions, financing, and on the other hand, the primary pre-requisite of individual involvement, support and cooperation.73
Yet, the general concept of the directive and the selected case studies of the study differ from each other, as the directive applies to individual patients seeking healthcare outside of their nation state’s territory, whereas the case studies represent cooperation of public entities.
Consequently, since the main objective of the Directive was an increase in cooperation among Member States’ national healthcare systems, the execution of these case-studies presents a favourable outcome.
For the legal basis of the directive, the executive bodies identified the aim to foster cross-border cooperation in the healthcare sector as an objective to strengthen the internal market of the EU.
Furthermore, the ruling of the ECJ appeals to Article 114 and identifies the provision of healthcare services as “a sector of economic activity.” Additionally, the directive transposes the EU’s commitment to ensure “a high level of human health protection” (Art. 168, TFEU) into EU law thereby.
The cross-border healthcare directive supports and promotes cooperation between Member States and sets the administrative framework accordingly. Case studies demonstrate individuals’ ambition and voluntariness and the recent allocation and distribution of patients suffering from COVID-19 throughout the whole EU emphasizes the indispensability of this directive to the European health policy. However, the occasional involvements of the European executive bodies remain clearly marginal. Notwithstanding the weak treaty-basis, the European Commission could further exploit the advantages of mutual enrichment by launching best practice exchanges and monitoring procedures for the creation of a database of common and distinctive features as well as identification of strengths and weaknesses.
As regarding the objectives aiming at protecting human health set by the EU’s Health Strategy, the directive under examination aims to meet the objectives: (2) facilitating access to better and
73 European Commission. Directorate General for Regional Policy.
