A judicialisation of healthcare policies in Denmark and Spain? The universalist healthcare model meets the European Union

Abstract

Abstract:This paper examines the impact of judicialisation on the right to cross-border healthcare in Denmark and Spain, i.e., the national impact of legal integration as spurred by the Court of Justice of the European Union (CJEU). We expect the national impact of judicialisation to be conditioned by the ex-post judicial, administrative and political responses, particularly the national courts' activation of EU law. By using new data, a compilation of national court cases, quasi-judicial proceedings and research interviews with key respondents, we examine the process of judicialisation in the two member states. The findings demonstrate that the national courts hardly played a role in Denmark and that although the courts were more active in Spain, the rulings remained largely unobserved by the political and administrative elite and the courts were thus unable to push for change. The administrative and political responses were found to be quite similar in the two member states, adapting to EU-induced changes in a protectionist and defensive manner. We conclude that the two universalistic healthcare models have so far proved resistant to judicialisation and that the discrepancy between what emerges de jure at the supranational level and the de facto rights produced at the national level is still a wide one.

Resistance Against the Court of Justice of the European Union

“…It is only in the last few years that the question of the wider effectiveness of CJEU judgments has received renewed attention (Freedland & Prassl, 2015a;Treib, 2014). Empirical studies cluster most heavily around the controversial CJEU doctrine developed in the so-called 'Laval quartet' 16 (Freedland & Prassl, 2015b) and the field of social policy, with a particular emphasis on access to welfare benefits (Blauberger & Schmidt, 2014;Heindlmaier & Blauberger, 2017) and cross-border healthcare (Martinsen, 2005;Martinsen & Mayoral, 2017;Obermaier, 2008). In all of these issues, the CJEU intruded on what Ran Hirschl has called 'megapolitics' (Hirschl, 2008), addressing deeply entrenched national conceptions of labour market and welfare regimes, and has met with pushback from an audience beyond specialists.…”

Resistance against the Court of Justice of the European Union

“…It is only in the last few years that the question of the wider effectiveness of CJEU judgments has received renewed attention (Freedland and Prassl, 2015a; Treib, 2014). Empirical studies cluster most heavily around the controversial CJEU doctrine developed in the so-called ‘ Laval quartet’ 16 (Freedland and Prassl, 2015b) and the field of social policy, with a particular emphasis on access to welfare benefits (Blauberger and Schmidt, 2014; Heindlmaier and Blauberger, 2017) and cross-border health care (Martinsen, 2005; Martinsen and Mayoral, 2017; Obermaier, 2008). In all of these issues, the CJEU intruded on what Ran Hirschl has called ‘mega-politics’ (Hirschl, 2008), addressing deeply entrenched national conceptions of labour market and welfare regimes, and has met with pushback from an audience beyond specialists.…”

“…As in the case of industrial relations, Danish courts shielded the domestic system, making almost no mention of EU law in their health-care case-law. The law was only changed in line with CJEU case-law after a prolonged intervention by the Danish Ombudsman (Martinsen and Mayoral, 2017, pp. 421–423).…”

The rise of a European healthcare union

“…Denmark and Spain (Martinsen and Mayoral Diaz-Asensio 2016). They investigate the expost judicial, administrative and political responses to legal integration and examine in particular the extent to which national courts activate EU law in their national proceedings.…”

“…The patient empowerment that was expected because of CJEU jurisprudence is not confirmed by the two case studies (Martinsen and Mayoral Diaz-Asensio 2016). Vollaard examines the extent to which CJEU jurisprudence and the patients' rights directive, as part of a larger process of the liberalization of cross-border healthcare in the EU's internal market, led to the end of territoriality in the provision of healthcare (Vollaard 2016).…”