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Health Care and EU Law 1st Edition Johan Van de Gronden Full Digital Chapters

The document is about the book 'Health Care and EU Law' edited by Johan Van De Gronden and others, which discusses the impact of EU law on health care and includes proceedings from a conference held at Radboud University. It covers various themes related to health care and EU law, particularly focusing on patient mobility and competition issues. The book is part of a series exploring legal developments regarding services of general interest in the EU.

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Johan Willem van de Gronden Erika Szyszczak
• •

Ulla Neergaard Markus Krajewski


Editors

Health Care and EU Law

123
Editors
Johan Willem van de Gronden Ulla Neergaard
Faculty of Law Faculty of Law
Radboud University University of Copenhagen
Comeniuslaan 4 Studiestræde 6
6525 HP Nijmegen 1455 Copenhagen K
The Netherlands Denmark
e-mail: [email protected] e-mail: [email protected]

Erika Szyszczak Markus Krajewski


School of Law Fachbereich Rechtswissenschaft
University of Leicester Universität Erlangen-Nürnberg
University Road, Leicester Schillerstraße 1
LE1 7RH 91054 Erlangen
UK Germany
e-mail: [email protected] e-mail: markus.krajewski@jura.
uni-erlangen.de

ISBN 978-90-6704-727-2 e-ISBN 978-90-6704-728-9

DOI 10.1007/978-90-6704-728-9

Ó T.M.C. ASSER PRESS, The Hague, The Netherlands, and the authors 2011

Published by T.M.C. ASSER PRESS, The Hague, The Netherlands, www.asserpress.nl

Produced and distributed for T.M.C. ASSER PRESS by Springer-Verlag, Berlin Heidelberg

No part of this work may be reproduced, stored in a retrieval system, or transmitted in any form or by
any means, electronic, mechanical, photocopying, microfilming, recording or otherwise, without written
permission from the Publisher, with the exception of any material supplied specifically for the purpose
of being entered and executed on a computer system, for exclusive use by the purchaser of the work.

The use of general descriptive names, registered names, trademarks, etc. in this publication does not
imply, even in the absence of a specific statement, that such names are exempt from the relevant
protective laws and regulations and therefore free for general use.

Cover design: eStudio Calamar, Berlin/Figueres

Printed on acid-free paper

Springer is part of Springer Science+Business Media (www.springer.com)


Series Information
The aim of the series Legal Issues of Services of General Interest is to sketch the
framework for services of general interest in the EU and to explore the issues
raised by developments related to these services. The Series encompasses, inter
alia, analyses of EU internal market, competition law, legislation (such as the
Services Directive), international economic law and national (economic) law from
a comparative perspective. Sector-specific approaches will also be covered (health,
social services). In essence, the present Series addresses the emergence of a
European Social Model and will therefore raise issues of fundamental and theo-
retical interest in Europe and the global economy.

Series Editors

Johan Willem van de Gronden Markus Krajewski


Faculty of Law Fachbereich Rechtswissenschaft
Radboud University Universität Erlangen-Nürnberg
Comeniuslaan 4 Schillerstraße 1
6525 HP Nijmegen 91054 Erlangen
The Netherlands Germany
e-mail: [email protected] e-mail: markus.krajewski@jura.
uni-erlangen.de

Ulla Neergaard Erika Szyszczak


Faculty of Law School of Law
University of Copenhagen University of Leicester
Studiestræde 6 University Road, Leicester
1455 Copenhagen K LE1 7RH
Denmark UK
e-mail: [email protected] e-mail: [email protected]

v
Preface and Acknowledgments

Over the last 20 years, it has become clear that EU law has had a considerable
impact on health care, despite the limited EU competence to legislate in this field.
A very important development is the Commission’s proposal for a Directive on
Patients’ Rights in Cross-border Health Care. In response to these controversial
developments in October 2009, a conference on Health Care and EU law was held
at the Radboud University, Nijmegen, The Netherlands. This book contains the
proceedings of this vibrant conference and, in addition, other contributions that
were commissioned by the editors to address a wide variety of significant themes
related to health care and EU law. Given that the ECJ’s case law on the free
movement of patients was an important starting point, the present volume places
the emphasis on internal market and competition issues.
This book is the second volume of the Series Legal Issues of Services of
General Interest. The aim of this series is to explore legal developments regarding
Services of General Economic Interest from a national, EU, WTO and comparative
perspective. In 2009, the first volume, The Changing Legal Framework for Ser-
vices of General Interest in Europe. Between Competition and Solidarity was
published stemming from an international conference organised in Potsdam,
Germany.
We would like to thank all authors for their interesting and stimulating papers.
Their studies greatly contribute to a better understanding of the growing impor-
tance of EU Law for health care. Furthermore, we are very grateful for the
generous financial support that we received from the Board of the Law Faculty of
the Radboud University Nijmegen to organise the conference on health care and
EU Law. We are very aware that this conference would not have seen the light of
day without the organisational and administrative support of the Centre for
Postacademic Legal Education of the Nijmegen Law Faculty. Members of the staff
of this centre, especially Wieneke Paulssen, were of great help.
The book was edited in the course of 2010 in close co-operation between the
four editors. Additional thanks are owed to Nina Harteveld, student-assistant at the
Department of International and European law of the Nijmegen Law Faculty, for
her work on the indexes.

vii
viii Preface and Acknowledgments

Moreover, we are also very grateful for the help and support given by the team
of T.M.C. Asser Press. Especially, the efforts of Philip van Tongeren and
Marjolein Bastiaans, which have led to a timely publication of the present volume,
are greatly appreciated.

Nijmegen, Leicester, Johan Willem van de Gronden


Copenhagen and Bremen, Autumn 2010 Erika Szyszczak
Ulla Neergaard
Markus Krajewski

Post Script

In January 2011 the European Parliament adopted a revised text of the Directive
on patient’s rights to second reading.
At the moment of the publishing of the present volume, a meeting of the
Council was scheduled with regard to this directive in March 2011. These
developments are not addressed in this volume.
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Contents

1 Introduction . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 1
Johan van de Gronden, Erika Szyszczak, Ulla Neergaard
and Markus Krajewski

Part I Foundations

2 EU Health Care Law in a Constitutional Light: Distribution


of Competences, Notions of ‘Solidarity’, and ‘Social Europe’ . . . . 19
Ulla Neergaard
3 Discrimination and Beyond . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 59
Berend Jan Drijber and Hilde Cadenau

Part II The (Draft) Patients’ Rights Directive


and Internal Market Issues

4 The Case Law of the European Court of Justice on the Mobility


of Patients: An Assessment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 79
Julio Baquero Cruz
5 Patients’ Rights: A Lost Cause or Missed Opportunity? . . . . . . . 103
Erika Szyszczak
6 The Draft Patient Mobility Directive and the Coordination
Regulations of Social Security . . . . . . . . . . . . . . . . . . . . . . . . . . . 133
Frans Pennings
7 Cooperation Between Health Care Authorities in the Proposed
Directive on Patients’ Rights in Cross-Border Healthcare . . . . . . 161
Tamara Hervey

ix
x Contents

8 Legislating for Patients’ Rights . . . . . . . . . . . . . . . . . . . . . . . . . . 191


Gareth Davies
9 Disrupting the Community—Saving Public Health Ethics from
the EU Internal Market . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 211
Christopher Newdick
10 Health Care, the United Kingdom and the Draft Patients’
Rights Directive: One Small Step for Patient Mobility
but a Huge Leap for a Reformed NHS? . . . . . . . . . . . . . . . . . . . 241
Jean McHale

Part III Competition Law and Health Care Issues

11 The Treaty Provisions on Competition and Health Care . . . . . . . 265


Johan W. van de Gronden
12 BUPA; A Healthy Case, in the Light of a Changing
Constitutional Setting in Europe? . . . . . . . . . . . . . . . . . . . . . . . . 295
Sybe A. de Vries
13 EU Law and the Organisation of Health Care:
Experiences from Germany . . . . . . . . . . . . . . . . . . . . . . . . . . . . 319
Felix Welti
14 Experiences from The Netherlands; The Application
of Competition Rules in Health Care. . . . . . . . . . . . . . . . . . . . . . 337
Wolf Sauter
15 The Elusive Ideal of Market Competition
in United States’ Health Care . . . . . . . . . . . . . . . . . . . . . . . . . . . 359
Nathan Cortez

Part IV Further Issues of EU Health Care Law

16 The Compatibility of Health Care Capacity Planning


Policies with EU Internal Market Rules . . . . . . . . . . . . . . . . . . . 389
Rita Baeten and Willy Palm
17 Public Procurement Law and Health Care: From Theory
to Practice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 413
Vassilis Hatzopoulos and Hélène Stergiou
18 Patient Mobility Beyond Calais: Health Services
Under WTO Law . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 453
Markus Krajewski
Contents xi

Part V Conclusion

19 Conclusions: Constructing a ‘Solid’ Multi-Layered


Health Care Edifice . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 481
Johan van de Gronden and Erika Szyszczak

Table of Cases. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 497

Index . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 503
List of Contributors

Rita Baeten, holds a master of social sciences and is senior policy analyst at the
OSE, European Social Observatory. Her research activities focus on the impact of
European integration on national healthcare systems and on their social character.
She advises the Belgian federal authorities on EU level developments with a
potential impact on healthcare.

Senior Policy Analyst, OSE, European Social Observatory, Paul Emile Janson
straat 13, 1050 Brussels. e-mail: [email protected]

Hilde Cadenau, currently works as a lawyer in the section European and Com-
petition Law at Pels Rijcken Droogleever Fortuijn N.V., located in The Hague. She
advises and litigates on subjects of European law, including agricultural law,
institutional law and state aid. She has a special interest in European and national
equal treatment law, and has published on the subject on various occasions.

Lecturer & Coordinator European Law Line, International Bachelor of Law Pro-
gram, The Hague University, Johanna Westerdijkplein 75, 2521 EN, The Hague

Nathan Cortez, is an Assistant Professor of Law at Southern Methodist Univer-


sity, teaches and writes in the areas of health law, food and drug law, adminis-
trative law and the legislative process. His research focuses on regulation of
emerging international markets in health care and biotechnology, including cross-
border health care. He has published in a number of law reviews and peer-
reviewed journals, and is frequently quoted by the media, including the Associated
Press, CNN and National Public Radio. Professor Cortez received his B.A. from
the University of Pennsylvania and his J.D. from Stanford. Before joining aca-
demia, Professor Cortez practiced law in Washington D.C. with the law firm
Arnold & Porter.

xiii
xiv List of Contributors

Assistant Professor, Dedman School of Law, Southern Methodist University, 3315


Daniel Avenue, Dallas, TX 75205, e-mail: [email protected]

Julio Baquero Cruz, is a member of the Legal Service of the European Com-
mission and visiting professor at Sciences Po (Paris) and at Universidad San Pablo
CEU/Fundación Ortega y Gasset (Madrid). He has been Research Fellow at the
Centro de Estudios Políticos y Constitucionales and Associate Professor at Uni-
versidad Carlos III of Madrid (2007–2009), and Marie Curie Fellow at the Robert
Schuman Centre (2005–2006). He holds a Ph.D. from the EUI and a LL.M. from
the College of Europe. From 2000 to 2004, he was a référendaire at the European
Court of Justice. He has lectured and published extensively on EU law.

Member of the Legal Service, European Commission, BERL 2/398, B-1049,


Brussels, e-mail: [email protected], Tel.: +32-2-2995436,
Fax: +32-2-2961846

Gareth Davies, is a Professor of EU law at the VU University Amsterdam. He was


previously a lecturer in EU law at the University of Groningen and a barrister. In
2006, he was an Emile Noel scholar at New York University. His research interests
are in European economic law, particularly the interaction of economic and non-
economic interests, and in EU constitutional law.

Faculty of Law, Department of Transnational Legal Studies, VU University


Amsterdam, De Boelelaan 1105, 1081HV Amsterdam, e-mail: [email protected]

Berend-Jan Drijber, currently works as a lawyer (partner) in the section Euro-


pean and Competition Law at Pels Rijcken Droogleever Fortuijn N.V., located in
The Hague. Previously, Berend-Jan was a staff member of the Legal Services of
the European Commission and subsequently legal adviser at the Permanent Rep-
resentation of the Netherlands. He now advises and litigates on a broad range of
subjects relating to European law, amongst others institutional issues, the four
freedoms and state aid. General and sector-specific competition law is an impor-
tant part of his practice, and health care is an upcoming subject. Besides his work
as a lawyer, he publishes on a regular basis, and has a long list of publications to
his name.

Pels Rijcken & Drooglever Fortuijn (state advocate), P.O. Box 11756, 2502 AT,
The Hague, The Netherlands, e-mail: [email protected]

Johan W. van de Gronden, is a Professor of European law at the Law Faculty of


the Radboud University Nijmegen (The Netherlands). He received his Ph.D. in
1998. His research interest concerns European internal market law, competition
List of Contributors xv

law, Services of General (Economic) Interest and the impact of EU law on health
care. From 1998 until September 2007, he worked at the Europa Institute of the
University Utrecht (the last years as a senior lecturer). On 1 September 2007, he
was appointed as a Professor of European law in Nijmegen. Since 2003, he is also
a deputy judge at the District Court Rotterdam, where he mainly handles com-
petition law cases. He is also a member of the Committee of Consumer Affairs and
of the Committee of International Social and Economic Affairs of the Social and
Economic Council.

Professor of European law, P.O. Box 9049, 6500 KK, Nijmegen, The Netherlands,
e-mail: [email protected]

Jean McHale, is a Professor of Health Care Law and Director of the Institute of
Medical Law at the University of Birmingham. She previously held a chair at the
University of Leicester and also held posts at the Universities of Manchester,
Nottingham and East Anglia. She is a member of the editorial board of Health
Economics Policy and the Law, the Medical Law Review and Nursing Ethics.

Professor of Health Care Law and Director of the Institute of Medical Law,
Birmingham Law School, University of Birmingham, Edgbaston, Birmingham,
B15 2TT, UK

Vassilis Hatzopoulos, is an Associate Professor at the Democritus University of


Thrace (Greece), a visiting Professor at the College of Europe, Bruges (Belgium)
and a Special (Honorary) Lecturer at the University of Nottingham (UK). He
practices as a lawyer at the Athens Bar since 1995 in the fields of Internal Market
(emphasis on services and free movement), network industries and public pro-
curement. He has published a couple of books, as well as over one hundred articles
and case notes, in English, French and Greek, on various topics of EU law.

Associate Professor, Department of Social Administration, Democritus University


of Thrace (Greece), Lycavittou 39-41, 10672 Athens, e-mail: vasshatz@socadm.
duth.gr, Visiting Professor at the Legal Department, College of Europe, Bruges,
Belgium

Tamara Hervey, is Jean Monnet Professor of European Union Law at the School
of Law, University of Sheffield. Her main research interests are in the field of EU
social and constitutional law, in particular its application in health fields, and she
has written widely on the EU’s involvement in health. She is interested in the
phenomenon of ‘new governance’ in the EU, in particular as an alternative or
supplement to ‘command and control’ means of regulation in social fields. She is
also interested in socio-legal theory and method, in particular, as applied to the law
of the EU.
xvi List of Contributors

Jean Monnet Professor of European Union Law, School of Law, University


of Sheffield, Bartolomé House, Winter Street, Sheffield, S3 7ND, e-mail:
[email protected]

Markus Krajewski, is a Professor of International Public Law, Faculty of Law,


University of Erlangen-Nuremberg, Germany. His research interests include
constitutional and institutional issues of WTO law, trade in services, and the
treatment of public services under European and international law.

Professor of Public and International Law, Fachbereich Rechtswissenschaft,


Universität Erlangen-Nürnberg, Schillerstraße 1, 91054 Erlangen, Germany,
e-mail: [email protected]

Ulla Neergaard, holds a Ph.D. degree from the European University Institute,
Florence, Italy. Since 1998, Neergaard has been an academic at the Law
Department at the Copenhagen Business School, Denmark, most recently as
professor of competition law. Since 2009, Neergaard has been Professor of EU
market law at the Law Faculty at the University of Copenhagen, however, from the
summer of 2010 moving over to a professorship of EU law. Since 1999, Neergaard
has been an expert member of the Danish Council of Competition and, since 2005,
also of the Danish Energy Regulatory Authority. She has published widely in EU
competition law and the more fundamental EU law.

Professor of EU law, Faculty of law, University of Copenhagen, Studiestræde 6,


1455 Copenhagen, e-mail: [email protected], Tel.: 35323313

Christopher Newdick, is a Professor of Health Law at the University of Reading.


He has served on the UK Department of Health’s Medicines Commission and the
British Medical Association’s Working Party on NHS Rationing. He is an Hon-
orary Consultant to health authorities in England and a member of the South
Central Priorities Committee which assists the process of health care resource
allocation in the NHS.

Professor of Health Law, University of Reading, Foxhill House, Whiteknights


Road, Reading RG6 7BA, UK, e-mail: [email protected]

Willy Palm, is the Dissemination development Officer of the European Obser-


vatory on Health Systems and Policies. He is responsible for organising and
leading policy dialogues with policy-makers in European countries on various
health systems-related issues. As a lawyer specialized in European social security
law, Willy has been working mainly in the field of statutory health insurance and
has been more specifically looking at the impact of EU integration on health
List of Contributors xvii

systems. Before joining the Observatory in April 2006, Willy was the Managing
Director of the International Association of Mutual benefit societies (AIM).

Dissemination Development Officer, European Observatory on Health Systems


and Policies, Zelfbestuursstraat 4, 1070 Brussels, e-mail: [email protected]

Frans Pennings, is a Professor of labour Law and Social Security Law at Utrecht
University and Professor of International Social Security Law at Tilburg Uni-
versity, the Netherlands. He published several books and articles on (European)
social law, including the European Coordination Security Regulation. In addition,
he is a judge at the Central Appeals Court in Utrecht (The Netherlands).

Professor of Labour Law and Social Security Law, Utrecht University, Achter St
Pieter 200, 3512 HT, Utrecht, The Netherlandse-mail: [email protected]

Wolf Sauter, is currently a competition expert at the Dutch Healthcare Authority


(NZa) and a Professor of healthcare at the University of Tilburg. He obtained his
Ph.D. from the European University Institute in Florence and has previously held
academic appointments in Bremen and Groningen. Wolf has also worked in pri-
vate practice in Brussels as well as with the Dutch ministry of finance, the Dutch
telecommunications regulator, and with DG Competition of the European Com-
mission.

Professor of Healthcare Regulation and competition expert at the Dutch Healthcare


authority, Nederlandse Zorgauthoriteit, Postbus 3017, 3502 GA, Utrecht,
The Netherlands, e-mail: [email protected]

Hélène Stergiou, is a Ph.D. fellow and lecturer of European Law at the Depart-
ment of International and European Law of the Radboud University Nijmegen. As
an attorney at law, she practiced European Law at AKD Prinsen Van Wijmen
(Brussels) and Pels Rijcken & Droogleever Fortuijn in The Hague. Her research
focus lies with EU Public Procurement Law. Hélène holds a law degree from the
University of Utrecht and the College of Europe.

Ph.D. Fellow, P.O. Box 9049, 6500 KK, Nijmegen, The Netherlands, e-mail:
[email protected]

Erika Szyszczak, is a Jean Monnet Professor of European Law ad personam and a


Professor of European Competition and Labour Law at the University of Leicester.
She is a practising barrister at Littleton Chambers, Temple, London, and an
ADR-accredited mediator.
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