Throughout the European Union, health care systems traditionally have been characterized by extensive regulatory intervention. National and regional authorities intervene mainly to ensure equal access, sustainability, quality, safety, equity and efficiency of health care for the citizens residing in their territory. Given the multitude of different actors involved, they need to align these overall principles and objectives with the interests of stakeholders to ensure the stable cooperation of all the players in the system.
Increasingly, this high level of public intervention has been challenged on the part of the European Community. Regulation in the field of health care is being scrutinized with regard to its conformity with EU law, particularly Community rules on free movement (of persons, goods and services). As different forms of mobility in the EU increase and also extend to all sectors, including health care, national measures and mechanisms increasingly run the risk of being seen as unjustified obstacles to free movement, which is prohibited under the EC Treaty. This chapter will focus particularly on the impact of the EC Treaty rules on free movement of services, which encompass both the principles of free provision of services (Article 49–50 EC) and of free establishment of providers (Article 43 EC).
Mainly spurred on by the jurisprudence of the European Court of Justice (the Court) and the action undertaken by the European Commission, the application of these two principles has gradually made its way into national health systems and has extended far beyond the specific cases of patient and provider mobility.