Social Security and Health Services in EU Law: Towards Convergence or Divergence in Free Movement, Competition and State Aids?

With this paper I maintain that the regulation of social security and healthcare in EU law revolves around the quest for a right balance between conflicting interests, involving the issues of social rights, State and Market, distribution of competences. In particular, the analysis of the way in which the ECJ legally frames the so called public/private divide permits to underline the emergence of relevant dissonances in the jurisprudence concerning the three sectors of competition, free movement and State aids. The rationale behind some of such divergences pertain to the existence of natural asymmetries on which evolve and take shape the constitutive elements of the European economic and social constitution. In this sense, the lack of convergence is not undesirable per se. On the contrary, it depends on the different role and function exercised by the solidarity principle on one hand and on the relevance of the public financing of social services on the other hand, in their interplay with the choice between abandon or revaluation of a (more or less) idealtpic public/private dichotomy. At the centre of the analysis is the full incorporation or, alternatively, attenuation, in the field of social security and healthcare, of the functional approach adopted in relation to the notion of economic activity. Some other divergences, however, are not justifiable. That is to say that in some cases there seems to emerge a need for a rapprochement between competition, free movement and States aids. This concerns the concept of general (economic?) interest and its potential intervention as a method of positive market and rights integration. Finally, the paper intends to highlight that at the core of the EU discourse is the pursuit of (and the quest for) a “healthy” interaction and relationship between individual free movement rights, social rights and State redistributive autonomy for the management of national social security and healthcare systems. In this respect, I will underline role, function and potentialities of Art. 106.2 TFEU as the appropriate sedes materiae to balance public interest’s aims and values with market principles and demands, both considered as constitutive elements, respectively, of the EU social and economic constitution.