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This paper aims, first, to chart the establishment case law of the European court and its impact on the “supply side” of healthcare provision. This shows that the development of this line of case law is slow and piecemeal: although on the one hand non-discriminatory rules are now caught by the prohibition, on the other hand the exceptions thereto are so far liberally applied based on the Gebhard test. In this manner systems based on public provision or self-regulation are shielded from market access and competitive entry. The main exception are those cases where the applicable national regulation is incoherent and can be picked apart on that basis as part of the proportionality test (necessity or appropriateness) of the disputed measures. Next, this paper looks at the possible contribution of a more integrated law and conomics based approach to improving the framework for deciding such cases and thereby to achieving a better result in terms of controlling expenditure and universal provision of a high standard of care due to market entry. It identifies developing the principle of proportionality and the application of state aid policy in healthcare as part of the future research agenda.

One Foot in the Grave or One Step Beyond? From Sodemare to DocMorris: The EU’s Freedom of Establishment Case Law Concerning healthcare