The weakness of strong policies and the strength of weak policies: Law, experimentalist governance, and supporting coalitions in European Union health care policy

Abstract

The experience of European Union (EU) health care services policy shows the importance of supporting coalitions in any effort to effect policy change and the extent to which the presence or absence of such coalitions can qualify generalizations about policymaking. EU health care services law is substantively liberalizing and procedurally driven by the courts, with little legislative input. But the European Court of Justice (ECJ) has been much better at establishing an EU competency in law than in causing policy development in the EU or member states. Literature on courts helps to explain why: courts are most effective when they enjoy supporting coalitions and the ECJ does not have a significant supporting coalition for its liberalizing health care services policy. Based on interview data, this article argues that the hard law of health care services deregulation and the newer forms of health care governance, such as the Open Method of Coordination and the networks on rare diseases, depend on supporting coalitions in member states that are willing to litigate, lobby, budget, decide cases, and otherwise implement EU law and policy. Given the resistance that the Court has met in health care sectors, its overarching deregulatory approach might produce smaller effects than expected, and forms of experimentalist governance that are easy to deride might turn out to have supporting coalitions that make them unexpectedly effective.

Liberalizing markets, liberalizing welfare? Economic reform and social regulation in the EU's electricity regime

“…Building on recent literature on the manner in which the social dimension in the EU is growing both within and beyond the market (Caporaso and Tarrow 2009;Greer 2011;Martinsen 2005), and the relation between enforcing market competition and change in public services (Clifton 2014), this paper highlights the development of social protection of vulnerable consumers as part of electricity sector reform. This process, led by the European Parliament and reluctantly adopted by the Commission, introduced targeted, limited social protection through regulation.…”

How Bureaucracies Listen to Courts: Bureaucratized Calculations and European Law

“…Nor was there a clear treaty base for legislation on health care services until the Lisbon Treaty created a weak base in Article 168. The interest of member states in legislation, and their receptiveness to the usual entrepreneurial Commission proposals, came after a string of court cases had created a clear EU law on health care (Greer 2006;Hervey and Vanhercke 2010). Such a pure case of the courts driving EU law as we have in health care is relatively rare today and worth studying as an ideal type of judicially led integration shorn of the interest group and legislative politics found in most other cases.…”

“…The only other cases were brought by the Commission. Larger networks, interest groups, or coalitions are not formally named and are hard to find in any of the patient mobility cases (though they are an issue in competition, state aids, and pharmacy cases) (Greer 2009a). Although some litigants (e.g., Mrs. Watts) seemed to have some ideologically driven support, there is nothing like a meaningful coalition visible behind them.…”

“…Brussels health lobbies boomed (Coen 2007). States began to call for "legislative certainty" and engage, trying alongside lobbies and the Commission to shape the new policy area (Greer 2009b;Hervey and Vanhercke 2010). After much infighting in the Commission, which cycled through a variety of frameworks and saw many of them rejected by member states, it produced a 2008 proposal for a Directive on Cross-Border Patient Mobility (COM 2008, 414).…”

“…The case of health care policy spotlights what is in the wings of these other literatures: the policy effects of courts in themselves. It is a case study of the effects of EU law on policy, without the legislation or extensive interest group activity that marks studies of both courts and implementation in the EU (as a case of the court triggering Commission entrepreneurialism, lobbying, and the associated politics of integration, it has already been researched in some detail: e.g., Baeten 2005;Martinsen 2005;Greer 2006Greer , 2009bObermaier 2009;Wasserfallen 2010;Brooks 2012).…”