Cross Border Health Care: An Analysis of Recent ECJ Rulings

Recent rulings of the European Court of Justice show a trend towards a virtual European health-care basket. Four developments underlie this trend. First, the competence of the European Union seems to mature in the field of health care. Secondly, through a variety of authorisation procedures, individual Member States can to a large extent determine the conditions for cross border care. Thirdly, recent court cases indicate that the co-ordination of cross border care increasingly becomes a EU matter. Finally, in particular border regions, more flexible procedures for cross border care are being developed. An analysis of these developments from an (economic) institutional/constitutional point of view shows that potential Pareto-improvements can be expected from recent changes. These improvements depend on the institutional/constitutional framework into which these rules and engagements are embedded. Our analysis suggests that, although the current (increasing) role for the EU seems desirable, diminishing the role that individual Member States can play is not. National authorisation procedures, local/regional arrangements and flexible rulings are mechanisms that can secure an efficient level of output and an optimal size of the jurisdiction responsible for cross border care. This leads to the following recommendations: Current authorisation procedures (which differ per Member State) have to be maintained in order to secure an optimal community size for cross border services and goods; Bilateral agreements and flexible procedures in cross border regions should be stimulated in order to adapt institutional arrangements to the demand for cross border care by (a group of) individuals. The increased competency of the EU in the field of health care can best be used to make authorisation procedures more consistent and stimulate regional cross border care arrangements.