The Community's Internal Market-Based Competence to Regulate Healthcare: Scope, Strategies and Consequences

Abstract

Rights of patients to seek medical treatment from foreign providers are creating a European market for healthcare services which will require regulation. Legislation on the basis of the internal market can address numerous issues of pricing, accessibility of services and access to markets, competition and state aids, as well as consolidating and clarifying patient rights. Potentially this amounts to a significant role for the Community in the regulation of national health care systems, whose legal context may come to resemble that of other network industries such as telecoms and energy. The legal, political and social implications of this de facto transfer of competence are large, which is why a cautious approach is justified. It may be wise to focus initial legislation primarily on patient rights. Such legislation makes minimal direct demands of national systems, but uses the patient as an agent, who by exercising his/ her rights forces those systems to adapt their behaviour and structure, and become more open. The familiar internal market pattern then recurs, whereby enforcement of individual rights results in liberalization and some degree of natural harmonization, after which market regulating legislation becomes a necessary and natural step and the transfer of power is complete.