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The Next Law Coming: Rights Claims and Legal Instability in European Union Health Care Policy

Scott L Greer

The EU directive on patient mobility is newly entered into law. It promises policymakers quot;legal stabilityquot;, or at least mild headaches for their lawyers, rather than the large-scale judicial policymaking by the ECJ that has shaped EU health care law so far. It promises patients the liberty to enjoy their home state's health benefits anywhere on the EU, aided by better information and transparency about decisions and duties on public authorities to cooperate. Member states have until October 2013 to bring it into force, and many of them are just starting their stakeholder consultations on ways to turn the Directive into domestic legislation. It might seem a bit premature, if not downright strange, to talk about another Directive (especially given the current problems of the Eurozone, which direct political adventures toward economic policy). But, this article does just that, arguing that well documented structural instability in EU law and policy affects health care legislation and will create pressure for more, and more prescriptive, legislation that narrows members states' autonomy and empowers courts. The reason is simple and comes from research into the relationship between law and policy in the EU, notably that of Kelemen. Pressure for EU legislation generally comes from legal risk and challenges; that is certainly the case with health care to date. Legal risk comes about when a policy area combines a badly defined right with an attractive principle and divergent member state implementation. These three characteristics produce court cases challenging member state decisions. In turn this creates new pressure for quot;legal stabilityquot;, which means new prescriptive EU legislation that further harmonizes member states' decision making. The result is that health care law is both a case study in Eurolegalism- and likely to be a future case study in European legal dispute and yet more European legislation.

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