The Politics of Health in the EU: the role of law

In attempts by Member States to guard their health systems from EU interference, successive treaty provisions were added to limit the possibility for adopting health law. Paradoxically, this has not limited the inroads of the EU into human health law and policy. As a result, the limited legal basis for health has impacted the protection of the values and objectives that have been part and parcel of Member States’ health law. This article asks: what difference can law make for more health representation and contestation in the field of health, so as to facilitate an ongoing EU debate based on shared health values and objectives? The main answer that this article puts forward is that law – particularly a stronger legislative basis for health – would trigger and empower the policy involvement of the national, expert and professional health communities to engage in the legislative and policy making process at EU level. Enhanced EU legislative power in health could empower these communities (also at national level) in the political push for recognition; resources and political attention. As a result, certain health-specific values would stand a better chance in leading further development of EU health law, where a political analysis of subsidiarity in light of health objectives, would perhaps dictate no involvement of the EU at all. In drawing out the potential impact of a stronger EU legislative basis for health, first the current limited legislative basis is explored, with a particular focus on what is called ‘competence creep’ in health. Second, the presumption that empowering a particular professional community will affect policy content is traced in the current literature in public administration. A last step considers potential costs and benefits of improved political contestation, in light of the wider understandings on the nature of the EU political system.