The subsidiarity principle
The principle of subsidiarity encompasses that decisions should be taken as closely to the citizen as possible. In the context of the European Union, subsidiarity means that when possible and reasonable, decision making power stays with the individual member states – or even at the regional or local level – instead of being transferred to the authority of the EU. Action at EU level should only be taken in policy domains where this has a clear added value. The subsidiarity principle is closely linked to the proportionality principle, which dictates that EU action should not go beyond what is necessary to effectuate the objectives of EU Treaties.
Healthcare: Soft law and the open method of coordination
Having 28 different member states in the EU also means each state has its own national interests and political sensitivities. Furthermore, each member state has its own unique and highly complex healthcare system. This complexity and diversity in healthcare systems is also the reason why the willingness to harmonise healthcare regulations at EU level is limited. Healthcare is a prime example of a policy domain where the subsidiarity principle prevails.
Both the EU and the Member States view healthcare as a matter of national competence, and the EU has no formal legal powers to develop its own ‘hard’ healthcare laws*. Instead, the EU’s influence on healthcare policy is exerted through soft law and the open method of coordination (OMC). This means that the EU strives to improve healthcare and the health status of EU citizens by promoting cooperation between Member States. This is done through benchmarking, guideline development, cross-country comparative evaluation and best practice exchange between and within Member States. Furthermore, the EU aims to stimulate certain practices by providing (financial) incentives, exerting social pressure and formulating joint objectives. The EU provides funding on international health research and supports the systematic collection and analysis of health-related data in all member states. In the end, the responsibilities in the field of health and healthcare predominantly lie with the individual Member States, and the EU mainly has a supportive and assisting role rather than a policing role. The basis for the open method of coordination seems to be trust, goodwill and shared values and beliefs about healthcare.
* Note: an exception to this rule might be Article 168 of the Treaty on the Functioning of the European Union, which does provide the EU with a mandate and obligation to consider health-related interests in all EU policies and activities.