Introduction

As we noted in chapters 1 and 2, health law is concerned with “rights” of individuals, for instance, to access elements of health care, or to particular standards of treatment in the health care context, or even to health protection. Health law is also centrally concerned with the legal construction of responsibilities– primarily that of the state in relation to the provision of health care services or in the area of safeguarding public health. However, in general, as is recognised by international and national (constitutional) law, national governmental institutions hold a primary responsibility for health care provision, health protection and promotion of health within their territories. In the case of the Member States of the EU, however, this responsibility for health is not located solely with national institutions, but may in some circumstances lie with the institutions of the EU, or in interactions between national and EU institutions. The notion of legal responsibility is constructed in EU law by reference to the powers or “competence” of the Community. This chapter therefore considers Community competence in the field of health.

The general context here – the allocation of competence within the EU's system of governance – is very much a matter of current concern for the EU, as reflected in the Laeken Declaration and the Draft Treaty Establishing a Constitution for Europe (DCT). This concern relates to the overall questions of legitimacy of the EU's “constitutionalised” legal order that were raised in chapter 2.