Foundations of the fundamental right to health in european systems

Abstract

The protection of health, and in particular of health care, is one of the fundamental pillars of the European and global democratic-social constitutionalism and a major nucleus of the Social State. In this context, the true European Social Constitution is the Revised European Social Charter of 1996, which cannot be ignored in a multi-level guarantee of this fundamental social right. It highlights its configuration as a social right of universalist provision for every person in need of health protection, as well as the interdependence, indivisibility, communicability and central character of this right within the system of fundamental human rights. It is an inclusive right that encompasses not only timely and appropriate health care but also the main determinants of health, the preventive and precautionary dimension, and the participation of the population in health decisions at the community, national and international levels. It constitutes a fundamental social right of “decommodification” of the modes of satisfaction of all the needs related to it and of a primary nature, which imposes on the public authorities the obligation to guarantee this social right of solidarity, making social rationality prevail over strictly economic rationality. The right is given a set of essential and instrumental elements (availability, accessibility, acceptability, quality) and imposes three types or levels of obligations on States: The obligation to respect, protect and fulfill. There is no single European model of healthcare provider health system. It is the competence and responsibility of the Member States to determine the benefits and their management, and it is up to the European Union to act on the two-fold basis of complementarity between the actions of the Member States and coordination of these national actions. In this European context, the main purpose of the Community regulations has been to coordinate the social security and health care systems of the Member States of the Union. A coordination carried out in view of achieving convergence by the objectives pursued, refusing to use the strong normative technique of legislative harmonization.