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4 - The hard politics of soft law: the case of health
- Edited by Elias Mossialos, London School of Economics and Political Science, Govin Permanand, World Health Organization, Geneva, Rita Baeten, Tamara K. Hervey, University of Sheffield
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- Book:
- Health Systems Governance in Europe
- Published online:
- 04 August 2010
- Print publication:
- 25 March 2010, pp 186-230
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Summary
Introduction
Talk of networked ‘new governance’ is everywhere. It elicits strong reactions – from scorn to extreme enthusiasm and from unthinking participation in new fora to excited applications of recondite social philosophy. Familiarity with the phenomenon also varies. Some forms of new governance are often found in health, but they are not necessarily known as such, while others have long histories outside health but are largely unknown within.
This chapter discusses new governance in EU health policies, examining the mechanisms and frameworks that EU institutions and Member States have introduced into health policy-making. These mechanisms promise to induce law-like behaviour by creating norms and networks (whether they will have that effect, or are intended to have that effect, varies). There are four obvious questions about any new policy development including ‘new governance’, and we answer them in the next three sections. What is it? How did it get started? Why is it happening? And what effect might it have?
A fifth question, naturally, is what has it done? Unfortunately, we cannot reasonably ask that question. For better or for worse, there is not much impact to study. Most new governance processes in health care became operational after 2005, or even later. Furthermore, many of the effects will be on process rather than outcomes – the direct effects will be on the networks and worldviews of policy-makers. The effects on infant mortality or leukemia deaths will often have to be inferred from those process changes.
2 - Health care and the EU: the law and policy patchwork
- Edited by Elias Mossialos, London School of Economics and Political Science, Govin Permanand, World Health Organization, Geneva, Rita Baeten, Tamara K. Hervey, University of Sheffield
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- Book:
- Health Systems Governance in Europe
- Published online:
- 04 August 2010
- Print publication:
- 25 March 2010, pp 84-133
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- Chapter
- Export citation
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Summary
Introduction
Governments of European welfare states face an uncomfortable predicament. To transfer their welfare-state obligations to the EU level would jeopardize the political basis of their legitimacy. However, since at least the mid-1980s, the processes of European integration, to which those governments are irreversibly committed, have become increasingly pervasive. As a result, European integration creates a problem-solving gap in that ‘member governments have lost more control over national welfare policies, in the face of the pressures of integrated markets, than the EU has gained de facto in transferred authority’, substantial though the latter may be.
At face value, health care seems to be a case in point to illustrate this predicament. Indeed, generally speaking, with some limited exceptions, the European Union has no legal competence to adopt EU law in the field of health care, this being a matter of national competence according to the EU's founding or ‘constitutional’ document, the EC Treaty (to be replaced by the Treaty of Lisbon 4 once it has been ratified by all the Member States). Unsurprisingly, both Member States and EU institutions are heavily bound in their ability and willingness (on account of national interests, political sensitivities and the huge diversity of health care systems in an EU of 27) to issue legislation in this area. Those who are (politically) responsible for health care at the domestic level are faced with a second problem: since the very beginnings of what is now the European Union, other areas of EU law have had unintended effects in health care contexts.
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