The Impediment of Health Laws’ Values in the Constitutional Setting of the EU

Abstract

What is the relationship between the role of the EU and the values central in the field of human health? By such ‘health values’, I mean the guiding principles whereby a society in general ensures the merit of a health policy or law. When a topic goes to the core of the manner in which humans shape mutual relationships and obligations (in the current case with respect to human health), there is a good argument to make that we need more justification than law, or a democratic rule, may be able to provide. Health values are often articulated through law, but they are self-standing. In the context of bioethics, they are understood as having an intrinsic importance that gives expression to standards for conduct in individual cases and in the organisation of public health and healthcare. Yet, the focus here is not on bioethics specifically, nor the particular ethical questions on the basis of health values as they emerge in the EU. Rather, to achieve the objective of navigating the intricacies of ‘European Union Health Law’ and related policies, in their constitutional setting, the focus of this chapter is the relationship between health values, fundamental rights and health law and policy. The paper argues that due to the EU’s current constitutional setting – which refers generally to the legislative limitations on the exercise of EU public authority of its institutions for adopting health law, including the protection and promotion of fundamental rights in that respect – EU health law and policy is not able to promote and protect the values that are embedded in Member States’ national health law and policy fully.