13 Jun A Right to Health in the European Union?
[Dr Claire Lougarre is a Lecturer in Law at Ulster University, School of Law. Her primary research expertise lies at the intersection of human rights law and health, with a particular interest in the right to health, as well as in sexual and reproductive health & rights.]
According to Article 3(5) of the Treaty on European Union (TEU), the European Union (EU) is encouraged to ‘contribute to (…) the protection of human rights (…) in its relations with the wider world’. However, to match standards developed at the United Nations or in other regions, including in Europe through the Council of Europe, the EU ought to promote an expansive interpretation of what rights should be protected and how these rights should be understood. In the aftermath of the COVID-19 pandemic, countries across the globe committed to deliver better public and global health, and human rights systems used the right to health as the spearhead for such endeavours, linking it to stronger economies and better health outcomes for the population. The right to health is recognised in multiple human rights treaties to which EU Member States are parties (e.g., Article 12 of the International Covenant on Economic, Social and Cultural Rights; Article 11 of the European Social Charter), as well as in Article 35 of the EU Charter on Fundamental Rights. The right to health is also recognised in more than half of the constitutions worldwide, including the majority of EU Member States’ constitutions. Is this enough to encourage the EU to contribute towards the protection of this right, particularly in the context of the Court of Justice of the European Union (CJEU) and its relations with other supranational bodies’ jurisprudence, as per Article 3(5) TEU?
Increasing Interest in Health Rights
Article 3(1) TEU emphasises that one of the EU’s objectives is ‘to promote […] the well-being of its peoples’, but the Treaty on the Functioning of the European Union (TFEU) is more explicit. Its Article 4(2)(k) gives the EU shared competences in ‘common safety concerns in public health matters’, and its Article 6(a) gives the EU supporting competences in the ‘protection and improvement of human health’. The dual aspect of EU competences in public health is reflected by Article 168 TFEU, which specifies that a ‘high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities’, and allows the EU to take different types of measures depending on what health matter is at stake. More specifically, the EU may take coordination measures under paragraph 2 (to improve the complementarity of Member States’ health services); incentive measures under paragraph 5 (to combat major cross-border health scourges, such as COVID-19); or harmonisation measures under paragraph 4 (e.g., the safety of medicinal products and devices). These measures have an impact on the realisation of individuals’ health rights across Europe and in order to assess the CJEU’s contribution towards the protection of the right to health, one should understand whether and how this right informs the CJEU’s case law.
As noted by McHale and Hervey, the CJEU has recognised human rights as ‘general principles of EU law’ since the 1960s, an approach recognised in the EU founding treaties in the 1990s, which is now reflected in Article 6(3) TEU. However, until recently, the CJEU rarely discussed health rights through a human rights narrative (whether by reference to Convention rights or, even less so, to Article 11 of the European Social Charter, which Hervey already stressed in 2005) and despite a majority of EU Member States having recognised a right to health in their constitutions. McHale contends that it is only since the 1990s that the EU has become increasingly involved with health care law and policy, and that it has shown greater interest towards human rights, including a right to health. The year 2009 was particularly pivotal: for the first time, the right to health became enshrined in a EU document having same legal value as an EU treaty (as per Article 6(1) TEU), with the entry into force of the EU Charter on Fundamental Rights and its Article 35 on healthcare (below).
Everyone has the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices. A high level of human health protection shall be ensured in the definition and implementation of all the Union’s policies and activities.
Furthermore, the EU admitted the importance of a ‘right to timely access to affordable, preventive and curative health care of good quality’ when adopting the European Pillar of Social Rights in 2017 (see principle 16). Despite this document not being legally binding, as argued by Suorsa, the COVID-19 pandemic seems to have accelerated the materialisation of a ‘European Health Union’. These developments (e.g., see here and here), altogether with Article 35 of the Charter, highlight a favourable context giving the CJEU a clearer mandate to protect the right to health across European States. Whilst Rieder notes that the CJEU mainly adjudicates health rights through Directive 2011/24/EU and Regulation (EC) No. 883/2004, it has started referring more explicitly to the right to health and Article 35 in its case law. As of June 2023, 33 different EU cases referred to the ‘right to health’, thereby reflecting an increasing interest in this particular human right at EU judicial level.
Insufficient Protection of the Right to Health
However, and despite an increasing interest in health rights, the EU does not guarantee the protection of everyone’s right to health.
Firstly, Article 35 of the Charter does not sufficiently allow the CJEU to promote a right to health across the EU. This provision conditions individuals’ rights to access health to ‘national laws and practices’, in line with the EU principle of conferral and the EU’s limited competences in the field of health. Therefore, unlike human rights treaties binding all EU Member States such as the International Covenant on Economic, Social and Cultural Rights or the European Social Charter, Article 35 does not define the right to health through international human rights standards. Furthermore, the application of Article 35 of the Charter is subjected to the principle of subsidiarity (see Article 51(1) of the Charter) and thus, is limited to situations in which the EU has shared competences (i.e., safety measures regarding organs and substances of human origin, in veterinary and phytosanitary fields, and regarding medicinal products and devices for medical use, as per Article 168(4) TFEU). Finally, authors such as Suorsa and, indirectly, Barnard, argue that Article 35 does not have direct effect and subsequently, represents a principle rather than a justiciable right in the CJEU’s case law. This weak treaty basis gives the CJEU little incentive to place human rights norms above national and EU law, and may perpetuate long-standing criticisms against the CJEU for subordinating human rights to EU market freedoms (e.g., Coppell and O’Neill). This contrasts with right to health provisions found in UN or Council of Europe human rights treaties binding EU Member States, as these set human rights standards applicable to all States and –mostly– regardless of the health topic at stake or the laws of the State.
Secondly, the EU does not sufficiently guarantee the right to health because, as rightly outlined by Da Costa and Borges, its health policies view health as a ‘commodity’ or a ‘market good’ to be acquired through individuals’ choice, but fail to grasp the communitarian approach embraced by this right. The right to health guarantees individual rights and freedoms but it does so more extensively (i.e., not limited to cross-border health rights, as it is often the case in the CJEU’s case law), and in addition to this, it views health as a social good used to advance social justice. This is reflected in the jurisprudence of human rights monitoring bodies such as the UN Committee on Economic, Social and Cultural Rights (e.g., General Comment No. 14) or the CoE European Committee of Social Rights (e.g., Digest case law on Article 11).
Thirdly, the EU does not sufficiently guarantee the right to health because the body authorised to supervise the implementation of Article 35, i.e., the CJEU, rarely uses the right to health in its case law. As discussed above, an analysis of the CJEU’s case law shows that this right is only referred to in 33 cases. However, half of these references stem from Advocate General’s Opinions and not from Judgments of the CJEU itself; and among the latter documents, only 5 Judgments referred to Article 35 of the EU Charter on Fundamental Rights (in which substantial comments are confined to tobacco control, i.e., here and here), and none referred to Article 11 of the European Social Charter or Article 12 of the International Covenant on Economic, Social and Cultural Rights. This may be explained by the fact that the CJEU tends to refer to provisions traditionally considered as negative freedoms, as Frantziou contends, although its commitment to reflect upon common constitutional traditional should take into account the recognition of a right to health in most EU Member States’ constitutions.
To conclude, and as rightly argued by Suorsa: ‘a fundamental right to health care is absent in the current regulatory framework of the EU’. In order to embrace the aims set in Article 3(5) TEU, the EU should appreciate health rights and, more precisely, Article 35 of the Charter, in the context of EU Member States’ obligations to realise the right to health, which are mainly defined under the International Covenant on Economic, Social and Cultural Rights and the European Social Charter. To mitigate the limited mandate and expertise of the CJEU on that particular matter, while assisting its increasing health rights adjudication, the Court should refer more often to key international documents outlining the scope of the right to health. These include, for instance, General Comment No. 14 of the UN Committee on Economic, Social and Cultural Rights outlining the content of Article 12 of the International Covenant on Economic, Social and Cultural Rights; or the Digest case law of the European Committee on Social Rights outlining the content of Article 11 of the European Social Charter.