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Public Services and European Law: Looking for Boundaries
Published online by Cambridge University Press: 27 October 2017
Extract
All member states must, as a matter of Community law, provide for a qualified right to go to another Member State to receive treatment at the expense of the competent social security system. According to Article 22 of Regulation 1408/71 such a right is conditional upon prior authorisation by the competent institution. Authorisation cannot be refused when the treatment is amongst the benefits provided for by the State where the individual resides and the treatment cannot be provided within the time ‘normally necessary’ for obtaining the treatment in the State of residence. The Court however has found that Article 49 EC imposes upon Member States obligations that go beyond those contained in the Regulation: thus a prior authorisation requirement constitutes a justified barrier (subject to important qualifications) in the case of hospital treatment and a non-justified barrier in the case of nonhospital treatment. The effects of this interpretation are far-reaching: not only do Member States see their obligations under Community law redefined in a way which might have a significant financial impact on their social security systems; but also the reasoning of the Court could be applied to other branches of the public sector, such as education.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2003
References
1 Regulation 1408/71 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community, as amended. Consolidated version OJ 1997 L28/1, and http://www.europa.eu.int/eur-lex/en/con-sleg/pdf/1971/en_1971R1408_do_001.pdf. Hereinafter Regulation 1408/71.
2 Case 286/82 Luisi and Carbone v Ministero del Tesoro [1984] ECR 377.
3 The Court made clear in case 36/74 Donà v Mantero [1976] ECR 1333, para 12 that the practice of sport is subject to Community law only insofar as it constitutes an ‘economic’ activity.
4 Case 196/86 Steymann v Staatssecretaris van Justitie [1988] ECR 2085.
5 Case 352/ 85 Bond van Adverteenders and others v The Netherlands [1988] ECR 2085, para 16.
6 Cf case 36/74 Donà v Montero above n 3, para 12: and AG Slynn’s opinion in 293/83 Gravier v City of Liège [1985] ECR 379, esp 603; and in case 263/86 Belgium v Humbel [1988] ECR 5365, esp 5379.
7 Case 263/86 Belgium v Humbel above n 6, para 18 and 19. See also case C–102/92 Wirth v Landeshauptstadt Hannover [1993] ECR I–6447. The lack of remuneration was instrumental in avoiding the difficult questions on the Irish limitation of information concerning abortion in case C–159/90 SPUC v Grogan [1991] ECR I–4685.
8 Of course social advantages have always been available to workers and established persons.
9 Case C–45/93 Commission v Spain (‘Museum admission’) [1994] ECR I–911; see more recently case C–388/01 Commission v Italy (‘Italian museums’), judgment of 16/01/03, nyr.
10 The reasoning of the Court in this case mirrors, to a certain extent, existing case law on benefits indirectly related to the provision of services according to which the non-discrimination obligation applies to anything connected, even indirectly, to the ability to pursue the economic activity; see eg case 63/86 Commission v Italy (‘Social Housing’) [1988] ECR I–29. In the field of establishment see Case 197/84 P Steinhauser v City of Biarritz [1985] ECR 1819.
11 Case 186/87 Cowan v Trésor Public [1989] ECR 195.
12 This reasoning applies also in other fields of Community law: see in relation to the applicability of Art 81 and 82 EC Joined Cases C–159 and 160/91 Poucet v Assurances Generales de France (AGF) and Caisse Mutuelle Regionale du Languedoc-Roussillon and Pistre v Caisse Autonome Nationale de Compensation de l’Assurance Vieillesse des Artisans [1993] ECR I–637, and more recently case C–218/00 Cisal di Battistello Venanzio & C Sas v Istituto Nazionale per l’assicurazione contro gli infortuni sul lavoro (INAIL) [2002] ECR 691; and AG Jacobs’ Opinion in Joined Cases C–264/01, C–306/01, C–354/01 and C–355/01 AOK Bundesverband and others v Ichthyol-Gesellschaft Cordes and others, delivered 22/5/03, case still pending. In relation to Art 43, case C–70/95 Sodemare Sa and others v Regione Lombardia [1997] ECR I–3395.
13 Case C–158/96 Kohll v Union des Caisses de Maladie [1998] ECR I–1931; Case C–368/98 Abdon Vanbreakel and others v Alliance nationale des mutualités chrétiennes [2001] ECR I–5363; Case C–157/99 B S M Garaets-Smits v Stichting Ziekenfonds VGZ and Peerbooms v Stichting CZ Groep Zorgverzekeringen [2001] ECR I–5–473; Case C–385/99 Müller Fauré vOnderlinge Waarborgmaatschappij OZ Zorgverzekeringen UA, and van Riet v Onderlinge Waarborgmaatschappi ZAO Zorgverzekeringen, judgment of 13/05/03, nyr.
14 Case C–158/96 Kohll v Union des Caisses de Maladie above n 13, noted by Giesen, R 36 (1999) Common Market Law Review 841; Cabral, P ‘Cross-Border Medical Care in Europe: Bringing Down a First Wall’ 24 (1999) European Law Review 387 Google Scholar; Van der Mei, AP ‘Cross-border access to medical care in the European Union—some reflections on the judgments in Decker and Kohll ’ 5 (1998) Masstricht Journal of European and Comparative Law 277 CrossRefGoogle Scholar; Fuchs, M ‘Free Movement of Services and Social Services: Quo Vadis?’ 8 (2002) European Law Journal 536 CrossRefGoogle Scholar.
15 The Court stressed that what was at issue was not the application of Art 22 of Regulation 1408/71 above n 1, since Mr Kohll was not claiming full reimbursement of the expenses he actually incurred abroad (as he would have been entitled were the Regulation applicable) but rather reimbursement of the sum he would have been entitled to had his daughter received treatment in Luxembourg.
16 Case C–157/99 Garaets-Smits and Peerbooms above n 13, noted Steyger, E ‘National Health Care Systems Under Fire (but not too heavily)’ 29 (1999) LIEI 97 Google Scholar; Van der Mei, AP ‘Cross-border access to medical care in the European Union—some reflections on Garaets-Smits and Peerbooms and Vanbraekel ’ 9 (2002) MJ 189 Google Scholar; and extensively analysed by Davies, G ‘Welfare as a Service’ 29 (2002) Legal Issues of European Integration 27 CrossRefGoogle Scholar and Hatzopoulos, V ‘Killing the National Health Systems but Healing the Patients? The European market for health care after the judgement of the ECJ in Vanbraekel and Peerbooms ’ 39 (2002) Common Market Law Review 683 CrossRefGoogle Scholar.
17 Case C–385/99 Müller Fauré and van Riet, above n 13.
18 Davies, G above n 16, writing before the ruling in Müller Fauré, argued that NHS type of systems would be excluded from Art 49 EC because of the absence of any market aspect.
19 Case C–368/98 Vanbreakel above n 13.
20 Opinion in case C–56/01 Patricia Inizan v Caisse primaire d’assurance maladie des Hauts de Seine, delivered 21/01/03, nyr, case still pending. On the fact that an expansion of the possibility of seeking health care abroad should be by way of legislation rather than judicial interpretation see Cornelissen, R ‘The Principle of Territoriality and the Community Regulations on Social Security’ 33 (1996) Common Market Law Review 439 Google Scholar, at 466.
21 This new situation seems to be similar to what is happening as a consequence of the direct effect of Art 18, which has been interpreted as expanding rather than challenge the residency directives. See Dougan, M and Spaventa, E ‘Educating Rudy and the (non-)English Patient: a Double Bill on Residency Rights under Art 18 EC’ 28 (2003) European Law Review 699 Google Scholar.
22 C–102/92 Wirth above n 7.
23 These cases might illustrate another aspect of the ‘leverage principle’, ie the use of secondary legislation to expand the scope of Treaty provisions, described by Treumer, S and Werlauff, E ‘The Leverage Principle: Secondary Community Law as a Lever for the Development of Primary Community Law’ 28 (2003) European Law Review 124 Google Scholar.
24 Of course this right is also recognised by Regulation 1408/71 above n 1. However the very recognition of such right in the Regulation is an expression of the State’s duty that once a given treatment is covered by the social security system, such treatment must be effective.
25 Different systems might operate conjunctively. So for instance there might be a reimbursement system for non-hospital care and a direct provision of services in relation to hospital treatments.
26 This model applies in the same way even if the State is contracting out health care without the medium of a sickness find and financing the scheme through general taxation rather than ad hoc contribution.
27 For a detail account of how costs are calculated in the Dutch system see AG Dámaso Ruiz-Jarabo Colomer’s Opinion in case C–157/99 Garaets-Smits and Peerbooms above n 13, para 44 and 45.
28 This regardless of the application of the public procurement directives (Dir 92/50 relating to the coordination of procedures for the award of public service contracts (1992) OJ L 209/1; Dir 93/36 relating to the coordination of procedures for the award of public supply contracts (1993) OJ L 199/1 as amended; Council Dir 93/38 relating to the coordination of the procurement procedures of entities operating in the water, energy, transport and telecommunications sector (1993) OJ L 199/84).
29 Case 352/ 85 Bond van Adverteenders above n 5.
30 In the same sense Davies above n 17.
31 See case C–60/00 M Carpenter v Secretary of State for the Home department [2002] ECR I–6279, and E Spaventa ‘From Gebhard to Carpenter: Towards a (non-economic) European Constitution’ forthcoming in the Common Market Law Review.