One Foot in the Grave or One Step Beyond? From Sodemare to DocMorris: The EU’s Freedom of Establishment Case Law Concerning healthcare

60 Pages Posted: 5 Jul 2009 Last revised: 24 Nov 2009

See all articles by Leigh Hancher

Leigh Hancher

Tilburg Law School; Tilburg Law and Economics Center (TILEC)

Wolf Sauter

Tilburg Law and Economics Center (TILEC); Dutch Healthcare Authority; Tilburg Law School; Netherlands Authority for Consumers and Markets (ACM)

Date Written: July 3, 2009

Abstract

This paper aims, first, to chart the establishment case law of the European court and its impact on the “supply side” of healthcare provision. This shows that the development of this line of case law is slow and piecemeal: although on the one hand non-discriminatory rules are now caught by the prohibition, on the other hand the exceptions thereto are so far liberally applied based on the Gebhard test. In this manner systems based on public provision or self-regulation are shielded from market access and competitive entry. The main exception are those cases where the applicable national regulation is incoherent and can be picked apart on that basis as part of the proportionality test (necessity or appropriateness) of the disputed measures.

Next, this paper looks at the possible contribution of a more integrated law and conomics based approach to improving the framework for deciding such cases and thereby to achieving a better result in terms of controlling expenditure and universal provision of a high standard of care due to market entry. It identifies developing the principle of proportionality and the application of state aid policy in healthcare as part of the future research agenda.

Keywords: freedom of establishment, healthcare; healthcare and: EU law, case law, Court of Justice, internal market, liberalisation, harmonisation, self-regulation, free movement, freedom to provide services, freedom of establishment, proportionality

JEL Classification: I18, K23, K32

Suggested Citation

Hancher, Leigh and Sauter, Wolf, One Foot in the Grave or One Step Beyond? From Sodemare to DocMorris: The EU’s Freedom of Establishment Case Law Concerning healthcare (July 3, 2009). TILEC Discussion Paper No. 2009-028, Available at SSRN: https://ssrn.com/abstract=1429315 or http://dx.doi.org/10.2139/ssrn.1429315

Leigh Hancher

Tilburg Law School

Tilburg, 5000 LE
Netherlands

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Wolf Sauter (Contact Author)

Tilburg Law and Economics Center (TILEC) ( email )

Warandelaan 2
Tilburg, 5000 LE
Netherlands

Dutch Healthcare Authority ( email )

Postbus 3017
Utrecht, 3502 GA
Netherlands

Tilburg Law School

Tilburg, 5000 LE
Netherlands

Netherlands Authority for Consumers and Markets (ACM) ( email )

PO Box 16326
2500 BH The Hague
Netherlands

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