Dorte Sindbjerg Martinsen

Towards an Internal Health Market with the European Court

This article examines the process through which a European healthcare dimension has been established and which has gradually extended the rights of European patients to cross-border healthcare. The integrative course has been charted by the legal activism of the European Court of Justice, whereas political voice has largely been absent. Judicial activism alone has applied the principle of the free movement of services to the policy field of healthcare, and thereby further energised the process. The political impact of this specific process of integration through law is, however, clear. The dynamic evolution of Community law has increasingly challenged the national instrument to retain health supply within own borders. Furthermore, the position of the European patient has been empowered by new individual rights, emanating from a supranational locus of rights against which the discretion exerted by national authorities can be challenged. Through the indeterminacy of European rules, open to continuous contestation and clarification, healthcare institutionalisation has proceeded and the European Union has extended into the core of the welfare state.

Conflict and Conflict Management in the Cross-Border Provision of Healthcare Services

Welfare regulation in the European Union continues to crawl forward despite salient conflicts of interests. This article addresses the fundamental puzzle of how regulatory competences may expand into the core of the welfare state and how conflicts are, eventually, managed in such processes. It analyses the EU cross-border provision of healthcare services and argues that the interplay between the Commission and the Court constitutes a powerful dynamic in generating new regulatory activities and in finding ways to set conflicts aside. The Commission draws on formulations offered by the Court in finding ways to manage conflict, for example, by requiring ‘proportionate’ national policies which establish that national obstacles to free movement principles are ‘objectively necessary’. The article concludes that law and evidence-based policy-making serve as powerful resources for the Commission in managing conflict.

The Europeanization of Gender Equality – Who Controls the Scope of Non-Discrimination?

The paper examines the extent to which member states control the impact of European Union (EU) policies. It does so through an historical study of what is considered to be the ‘least likely case’ – the Europeanization of Danish gender equality. The analytical findings identify various and diverse effects of European integration over time on national policy, politics and law. Historically, the EU has had a major role in furthering and putting into effect equality rights – even in the ‘least likely’ case of Denmark. From a theoretical perspective, the paper argues that the study of Europeanization could learn from the insights of implementation theory. Empirically, the analysis demonstrates that the process of implementation involves a complex series of ‘decision points’ that extend beyond the control of national governments. These ‘decision points’ may veto, extend or enforce the impact of European policy. Furthermore, states do not act with a single purpose, but are comprised of a variety of, often competing, actors and interest groups.Abstract The paper examines the extent to which member states control the impact of European Union (EU) policies. It does so through an historical study of what is considered to be the ‘least likely case’ – the Europeanization of Danish gender equality. The analytical findings identify various and diverse effects of European integration over time on national policy, politics and law. Historically, the EU has had a major role in furthering and putting into effect equality rights – even in the ‘least likely’ case of Denmark. From a theoretical perspective, the paper argues that the study of Europeanization could learn from the insights of implementation theory. Empirically, the analysis demonstrates that the process of implementation involves a complex series of ‘decision points’ that extend beyond the control of national governments. These ‘decision points’ may veto, extend or enforce the impact of European policy. Furthermore, states do not act with a single purpose, but are comprised of a variety of, often competing, actors and interest groups.

Implementing Social Europe in Times of Crises: Re-Established Boundaries of Welfare?

This volume examines the state of social Europe when European Union principles and policies have to be implemented in the member states while the EU legitimacy crisis and the Great Recession prevail. The volume explores diverse processes, stages and subjects of implementation in a variety of social policies to identify different institutional dynamics and actor behaviours at play. The individual contributions examine the transposition of the patients’ rights directive to the Europeanisation of pension reforms; the role of national parliaments in transposing social Europe; judicial Europeanisation; and the multi-level enforcement of EU decisions. Theoretically, the volume highlights that implementation is often conditioned by domestic politics or comes as a ‘random walk’ due to organisational and cognitive constraints. Empirically, the volume has three main findings. First, the constitutive components of the EU tend to have a contradictory impact on the EU’s social policies and the national welfare systems. Second, crises influence the implementation of social Europe, at times leading to a modification of fundamental principles and content, but not across the board. Third, as a result, there is evidence of differentiated Europeanisation.

Transgovernmental Networks in the European Union: Improving Compliance Effectively?

The application of European Union (EU) rules is, in general, the responsibility of national executives. This key intergovernmental aspect of the EUs administrative order makes compliance with supranational law vulnerable to distortion. However, the European executive has added important fire-alarm oversight mechanisms by means of transgovernmental networks (TGNs) to its toolbox. This article examines the work mode, horizontalness and effectiveness of such networks as newer governance tools to oversee and monitor the compliance with EU law. It draws on a unique dataset on the Solvit network, enabling us to examine effectiveness and variation of a transgovernmental network in operation. The article substantiates the relevance of TGNs in identifying and solving manifold and complex problems of misapplied EU law, finds that the Commission constitutes a focal point in this type of multilevel executive and points out that learning in part explains why effectiveness varies across member states.

Judicial policy-making and Europeanization: the proportionality of national control and administrative discretion

Judicial policy-making is having an increasing impact on political domains traditionally guarded by national sovereignty. This paper examines how the European judiciary has expanded Community competences into the policy domains of welfare and immigration, followed by subsequent Europeanization, against the preferences of the member governments. It finds that the principle of proportionality constitutes a most powerful means for the European Court to strike the balance between supranational principles and national policy conditions and administrative discretion. While the Court has previously been cautious to apply the principle beyond economic law, it no longer treads as reluctantly, instead generally limiting the inner core of national policy control, i.e. the capacity of the national executive to detail, condition and administer national policies in almost all domains.

Bounded Rationality in Transposition Processes: The Case of the European Patients’ Rights Directive

Studies explaining the timeliness and correctness of the transposition of EU directives into national legislation have provided rather inconclusive findings. They do not offer a clear-cut prediction concerning the transposition of the patients’ rights directive, which is one of the first that concerns the organisation and financing of national healthcare systems. This article applies the perspective of bounded rationality to explain (irregularities in) the timely and correct transposition of EU directives. The cognitive and organisational constraints long posited by the bounded rationality perspective may affect the commonly employed explanatory factors of administrative capacities, misfit and the heterogeneity of preferences among veto players. To prevent retrospective rationalisation of the transposition process, this paper traces this process as it unfolded in Denmark and the Netherlands. As bounded rationality is apparent in the transposition processes in these relatively well-organised countries, future transposition studies should devote greater consideration to the bounded rationality perspective.

The making of a European healthcare union: a federalist perspective

ABSTRACT European Union (EU) involvement in healthcare policies is growing, despite the fact that national governments prefer to keep an almost exclusive say in these policies. This article explains how this shift of authority could happen and explores whether it will lead to a European healthcare union. It argues that federalism offers the most fruitful way to do so because of its sensitivity to the EUs institutional settings and to the territorial dimension of politics. The division of competences and national diversity of healthcare systems have been major obstacles for the formation of a healthcare union. However, the EU obtained a role in healthcare through the impact of non-healthcare legislation, voluntary co-operation, court rulings, governments’ joint-decision traps and fiscal stress of member states. The emerging European healthcare union is a system of co-operative federalism without much cost-sharing. The healthcare unions robustness is limited, also because it does not generate much loyalty towards the EU.

Accountability as a Differentiated Value in Supranational Governance

Accountability differs in its meaning, scope, and impact. Consequently, its expression as a value and an instrument of “good governance” differs across time within and between organizations. Through the prism of theories on public values, this article examines accountability as a value in the administration of the European Union, that is, the European Commission. The article presents a theoretical discussion of value hierarchies, causality, and conflicts. Theoretical suggestions are included in an empirical examination of value conflicts in the administrative reforms of the European executive. It is argued that organizational characteristics of the European Commission condition value implementation. The article finds that although accountability appears as the “good value per se,” its applied period is brief and its status is contradicted by conflicting values.

Social Security Regulation in the EU: The De-Territorialisation of Welfare

Although the European Union (EU) has not formally been assigned welfare policy competence, it has for decades regulated social benefits between the Member States. The social rights and obligations of the European migrant have for long been safeguarded by the EU, and the mutual responsibility for welfare undertaken by the Member States of the Union constitutes an extraordinary piece of ‘Social Europe’. This chapter examines the integration of national social security schemes that has taken place in the European Union through Community Regulation 1408/71, which has recently been substantially reformed with the adoption of Regulation 883/2004. The chapter seeks to demonstrate that a dimension of European social security has for long been a material fact, patched up by judicial activism and political compromises. A more general description will be drawn of how intra-European welfare has been extended to all citizens of the Union in parallel with the extension of the free movement principle to persons. The focus of the chapter is, however, on the question of exportable welfare between Member States; it describes how the tension between the Community principle of exportability and national principles of territoriality has over time intensified, been reconciled, and reappeared.