Public services and the European Union : a study of the impact of community law on health care, health insurance and education services

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Politically sensitive and economically important, welfare services such as health care, health insurance and education have opened up a heated debate in the EU. Due to the high level of regulation and government control of these services, their markets tend to be national, and this conflicts with Community free movement provisions. Moreover, Member States increasingly use market mechanisms and private actors in their welfare systems, and this triggers the application of Community competition law.

The application of Community law to welfare services raises discontent from the part of the Member States who perceive their systems to be under threat. Several conflicts take shape: between national social interests and Community economic interests; between individual interests and national general interests; between regulation and deregulation, centralization and decentralization.

Member States resist to the application of Community law for many reasons but partly because of a perception that market law and processes conflict with other values. Resisting to the application of the law is sometimes seen as part of protecting those values. Nistor suggests that this resistance is largely unjustified. Community law is not damaging to welfare systems, but it provides adequate balancing mechanisms to ensure that all interests are protected.

The approach taken in analysing the impact of Community law on welfare services is to look at the negative integration process and answer the questions related to the extent to which Community law applies to welfare services and the kinds of safeguards the Court offers for these services. The proportionality principle distinguishes itself as the central element in balancing national and Community interests. Being part of the broader integration process, negative harmonization creates legislative lacunae, and therefore, this thesis also looks at alternative solutions to the negative harmonization process, namely positive and soft law.

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