13 Colum. J. Eur. L. 623 (2007)
Tamara Hervey. Professor of Law, University of Sheffield, United Kingdom.
Louise Trubek. Clinical Professor of Law, Director of Health Law Project, University of Wisconsin-Madison, United States.
In the context of free movement of health care services, “the classic Community method” (CCM) of regulation through harmonized internal market law, underpinned by Treaty-based litigation, has failed At the same time, a plethora of new governance activities concerned with health care have grown up in the EU. This article argues that the current situation represents an opportunity to develop and design, ex ante, a new Trans- formative Directive on health care services. The Transformative Directive would articulate the formal legal rules on cross-border receipt and provision of health care services in the EU. At the same time, the Directive would set up a framework for creating non-binding norms through participatory mechanisms, such as those found in new governance processes that already exist in other areas of EU law. The Directive would represent an example of a transformative relationship between law (the CCM) and new governance, where the procedures and institutions of new governance and traditional law are structurally designed as an integrated system, each element of which relies on the other for its success.