Addressing De Facto Discrimination through the European Health Data Space: Taking Obesity as a Case Study of Non-Immediate Primary Use

This paper investigates the structural limitations of cross-border healthcare mobility under Directive 2011/24/EU, analysing whether the European Health Data Space (EHDS) could offer a constitutionally compatible solution to its limited practical effectiveness. Although the directive formally recognises patients’ right to reimbursement for treatment abroad, organisational fragmentation and inadequate digital interoperability persistently constrain its effective exercise. Against this background, the article introduces the interpretative concept of ‘non-immediate primary use’ of electronic health data. This is defined as a professionally mediated and infrastructural process designed to identify appropriate cross-border treatment options when national systems are clearly inadequate. Using obesity as a case study of structural discrimination, the analysis argues that digital coordination under the EHDS could implement existing mobility rights without expanding the competences of the Union under Article 168(7) TFEU. The EHDS is therefore presented as an infrastructural instrument that can reinforce substantive equality within the current constitutional allocation of powers.