| dc.description.abstract | 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. | en |
