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The Dynamic Potential of European Union Health Law

Published online by Cambridge University Press:  04 September 2020

Jean Monnet Professor of European Union Law at the University of Sheffield, UK; email: The support of the Economic and Social Research Council (ESRC) “Health Governance after Brexit” grant ES/S00730X/1 is gratefully acknowledged.
Associate Professor of European Union Law at Amsterdam University School of Law, The Netherlands.


Some understandings of European Union health law are based on a presumption of law as a static and closed system. This approach to the Union as a legal entity has important ramifications. The Union is a political system created by and subject to the rule of law. Its successes (and failures) are attributable to the legalisation of solving externalities and ensuring Member State solidarity to gain benefits from integration. Member States, which create and sustain the Union by repeated acts of sovereign choice, choose to subject themselves to the rule of (Union) law. This protects both the Member States and the Union institutions (imperfectly, but nonetheless) from charges of illegitimacy. While recognising the benefits of such an approach to European Union integration and law-making, we take the view that law also has an important dynamic potential. That dynamic potential is inherent in all law, for law is embodied in text, and always open to interpretation, as the external contexts that give legal text meaning in the real-world change through time. We trace the dynamic potential of Union health law by looking at its legal basis to its foundational Treaties, and we plot its trajectory going forward.

© The Author(s), 2020. Published by Cambridge University Press

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1 This is an obvious simplification of these theories and explanations of European Union integration. Our understanding of the European Union’s involvement in health is greatly indebted to these understandings. See, seminally, B Rosamond, Theories of European Integration (Basingstoke, Macmillan 2000).

2 In this commentary, we were asked to provide a broad-stroke analysis of the past and future of Union law and policy. For full details of the legal instruments to which we refer, please see A de Ruijter, EU Health Law and Policy: The Expansion of EU Power in Public Health and Health Care (Oxford, Oxford University Press 2019); TK Hervey and JV McHale, European Union Health Law: Themes and Implications (Cambridge, Cambridge University Press 2015); and TK Hervey and JV McHale, Health Law and the European Union (Cambridge, Cambridge University Press 2004).

3 See de Ruijter, supra, note 2.

4 For an example of the method, see TK Hervey, “Re-Judging social rights in the EU” in G De Burca, C Kilpatrick and J Scott (eds), Critical Legal Perspectives on Global Governance (Oxford, Hart 2014) p 347.

5 For simplicity, we use “Union” throughout this article, although it is not legally correct.

6 Hervey and McHale, 2004, supra, note 2, 73.

7 ibid.

8 ibid, 74 et seq.

9 “Proposal for a Regulation of the European Parliament and of the Council on the Establishment of a Programme for the Union’s Action in the Field of Health – for the Period 2021–2027 and Repealing Regulation (EU) No 282/2014 (‘EU4Health Programme’) (COM(2020) 405 Final)” <>.

10 R Geyer, Exploring European Social Policy (Cambridge, Polity 2000) p 175.

11 See the case study of Watts in T Hervey, “EU Health Law” in C Barnard and S Peers (eds), European Union Law (Oxford, Oxford University Press 2020 forthcoming), ch 21.

12 Note the exceptions for substances of human origin (Art 168(4)(a)), public health protections in veterinary and phytosanitary rules (Article 168(4)(b)) and medicines and medical devices (Article 168(4)(c)).

13 S Garben, “Competence Creep Revisited” (2019) 57 Journal of Common Market Studies 205. Garben describes at least six forms in which competence creep may take place, which all take place in areas where Member States have retained authority (Arts 2–6 TFEU).

14 For a broad discussion and case references, see Hervey and McHale, 2015, supra, note 2, 364.

15 We refer here to an intricate regulatory space with intensive legal developments within EU case law. See eg. Case C-376/98 Germany v Parliament and Council (Tobacco Advertising) [2000] ECR I-8419. And for further discussions, see, eg, Hervey and McHale 2015, supra, note 2, 71–124, including the patients and the medical products cross-border dynamics. Also see de Ruijter, supra, note 2, 63–90.

16 KP Purnhagen et al, “More Competences than You Knew? The Web of Health Competences for Union Action in Response to the COVID-19 Outbreak” (2020) 11 European Journal of Risk Regulation 297.

17 There is a long line of scholars working on the Union’s democratic deficit – we name a few: D Curtin, “’Civil Society’ and the European Union: Opening Spaces for Deliberative Democracy?” in Collected Courses of the Academy of European Law, Volume 3, Book 1, European Community Law (Alphen aan den Rijn, Kluwer 1997); A Moravcsik, “In Defence of the ‘Democratic Deficit’: Reassessing Legitimacy in the European Union” (2002) 40 Journal of Common Market Studies 603; M Bartl, “The Way We Do Europe: Subsidiarity and The Democratic Deficit” (2015) 21 European Law Journal 23; D Grimm, “The Democratic Costs of Constitutionalisation: The European Case” (2015) 21 European Law Journal 460.

18 A de Ruijter, “The Impediment of Health Laws’ Values in the Constitutional Setting of the EU” in TK Hervey, CA Young and L Bishop (eds), Research Handbook on EU Health Law and Policy (Cheltenham, Edward Elgar 2017); A de Ruijter, “EU Integration in the Field of Human Health” (2016) 38 Journal of European Integration 837.

19 Garben, supra, note 13.

20 G Davies, “Subsidiarity: The Wrong Idea, in the Wrong Place, at the Wrong Time” (2006) 43 Common Market Law Review 63. Subsidiarity as a tool for EU integration is a matter of assessing the effectiveness of law in view of a particular (legislative) objective, rather than balancing values.

21 de Ruijter, supra, note 2.

22 ibid.

23 See, eg, Art 2 TEU; The Charter of Fundamental Rights of the European Union OJ 2012 C 26/391; European Council Conclusions on Common values and principles in European Union Health Systems OJ 2006C 146/01.