Volume 47 (2010)

Volume 47 (2010) / Issue 1

Leigh Hancher, Wolf Sauter, 'One Step Beyond? From Sodemare to Docmorris: The EU’s Freedom of Establishment Case Law Concerning Healthcare' (2010) 47 Common Market Law Review, Issue 1, pp. 117–146


The article aims, first, to map out the broad lines in the establishment case law of the European courts and its impact on the “supply side” of healthcare provision. It is apparent that the development of this line of case law so far is relatively (e.g. compared to the services case law) slow and fragmented. On the one hand, recent cases such as DocMorris show an advance with regard to the earlier Sodemare case because non-discriminatory rules are now caught by the prohibition. This can be seen as “one step beyond”. However, the exceptions to the prohibition of obstacles to freedom of establishment are being liberally applied based on the Gebhard test. In this manner systems based on public provision and/or self-regulation remain on the whole shielded from market access and competitive entry. The main exception are those cases where the applicable national regulation is self-evidently incoherent and can be attacked on that basis as part of the proportionality test (necessity or appropriateness) of the measures. The article then looks at the possible contribution of a more integrated law and economics based approach to achieve both a more coherent framework for deciding such cases and an improved result in terms of controlling expenditure and universal provision of a high standard of care. Finally, the article identifies the development of the principle of proportionality in this context as part of the future research agenda

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ISSN: 0165-0750
ID: COLA2010005