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7719 results in Intersentia

Page 212 of 386

  • Chapter 16 - Dutch Tort Law at the Crossroads: Judicial Regulation of Health and Environmental Risks

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 375-398

  • Summary

    INTRODUCTION

    JUDICIAL RISK REGULATION

    It is the government’ s responsibility to protect its citizens against health and environmental risks. Governments have to enact regulations that set out the legal responsibilities of the relevant private actors – such as producers, developers of a technology, employers – with respect to risks. Moreover, these rules should ideally be enacted and enforced before the materialisation of risks.

    Lately, the Dutch government has been (legally but also socially) accused of failing in this task. Its response to several risks would have been inadequate, such as the risk of asbestos exposure, (shale) gas extraction, Q fever (bacterial infection associated with cattle), tobacco smoke and greenhouse gas emissions. Also for the future, some scholars – and even the government itself – expect that the government will face difficulties in regulating the risks of new technologies, such as biotechnology and nanotechnology, and hence in protecting citizens against such risks.

    As a reaction to these threats from alleged governmental failures, judicial regulation of health and environmental risks is being sought by litigants, and the results are entering the Dutch private law system. Although such risk-regulatory lawsuits might have different claimants, defendants and outcomes, they share three characteristics:

  • 1. they seek to use the private law system to set regulatory standards for risks (i.e. to provide the standard of care for the government or an industrial sector that also has relevance beyond a specific legal dispute);

  • 2. they seek to and/or actually bring about changes in the behaviour and policy of private actors and/or governments in relation to the management of (the consequences of materialised) risks; and

  • 3. they affect the (non-legal) interests of third parties, such as industrial sectors.

    • The complementary role that civil courts currently play in regulating risks can also be seen in three forms.

    First, claims for damages against the state and private actors may be sought as a mechanism to redress the negative effects of (alleged) inadequate risk management, including the failure to regulate at all. Such claims have typically failed when brought against the state. For example, in 2013, a Dutch worker whose work had involved asbestos contracted mesothelioma, a cancer caused by exposure to asbestos, and lodged a claim for damages against the Dutch state.

  • Chapter 9 - Regulating Risk Through Private Law: South Africa

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 223-252

  • Summary

    INTRODUCTION

    There are two distinct ways in which risk-reasoning features in the South African law of delict. The first, which is the subject of section 9.2 below, relies on the concept of ‘risk-taking’. The second, which is discussed in section 9.3, relies on the notion of ‘risk generation’.

    Risk-taking is the ground upon which the South African law of delict imposes Aquilian liability on negligent harm-doers. A harm-doer was negligent if he created the risk of the harm that eventuated and was at fault in doing so: because a reasonable person in his position would have foreseen the risk and, having foreseen it, would have guarded against it. The law disapproves of the risk-taking conduct, and that is the reason for the imposition of liability in respect of the harm suffered. However, risk-taking may also serve as a reason to deny liability. Thus the defence of volenti non fit iniuria deprives the plaintiff in a delictual action of an otherwise valid claim on the ground that he has assumed responsibility for the negative outcome of a risk generated by the defendant. This is similar to the way in which a claim in unjustified enrichment – in so far as it arises in whole or in part from mistake on the part of the plaintiff – is refused if he can be said to have taken the risk of his mistake. The effect of risk-taking on the part of the plaintiff is to neutralise mistake as a cause of action, since his mistake can no longer be said to have caused him to confer the benefit in question.

    When we consider the efforts of the South African law of delict to regulate risk, it seems that we are concerned not only with risky conduct of which the law disapproves, but also with risky activities which the law wishes to encourage, or at least has no reason to discourage. Even socially beneficial activities generate risks of harm, and the question then arises whether the law of delict should regulate these risks through the imposition of liability on the risk-generator, as opposed to letting the loss lie where it falls, or – outside the immediate domain of private law – creating some form of insurance scheme by means of which the loss is spread throughout the general population or some part thereof.

  • Chapter 10 - Risk and Brazilian Private Law

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 253-282

  • Summary

    INTRODUCTION

    The concept of risk is embedded in Brazilian law. The term ‘risk’ has acquired multiple meanings and has found its way into several fields of law, with varying degrees of acceptance. Scholars and professionals normally mention risk when trying to reduce it. This is the case, for instance, in contract law. Risk is also a main subject in tort law and plays a key role in the summa divisio of tort liability: fault-based liability and strict liability. Fault is the foundation for ‘subjective’ liability (along with abuse of rights); 1 risk is usually the foundation for strict liability. Each form of liability is autonomous with regard to the other and in no sense is ‘subjective ’ liability hierarchically superior to, or thought to be more important than, strict liability in Brazil. Rather, each of these types has its own scope of regulation, clearly defined by law, meaning that parties may not choose when fault-based liability or strict liability is applied. Thus, the two regimes complement one another through the application of general clauses. Unlike some other countries, the use of general clauses is a hallmark of Brazilian law on risk and complicates regulating risk in a given activity, as discussed in the Brazilian chapter in Part II (Ch. 19).

    However, the concept of risk is not confined to generic hypotheses enshrined in contract law or tort law. Every country has particular problems related to risk that require specific legal solutions formulated within the general framework of that jurisdiction, and has its own starting points, usually not explicit in legislation, case law or legal doctrines. Analysing risk in Brazilian law reveals interesting features of the country's legal culture, for example the way in which Brazilian scholarship has developed doctrines regarding risk distribution, or how legislative techniques were adopted to provide timely answers to riskrelated problems, particularly those that were and are more sensitive due to the socio-economic conditions in twentieth- and twenty-first-century Brazil.

    In this chapter, the analysis of the concept of risk is divided into three parts in sections 10.2 – 10.4. The first part is a survey of risk definitions in key Brazilian legislation and classification of risk by scholars.

  • Chapter 14 - Modernisation and Risk Regulation in the Italian Food Sector

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 347-360

  • Summary

    INTRODUCTION

    This second chapter from Italy takes up one particular theme to illustrate two important aspects of how private law regulates risks: the interactions within domestic law and the relationship between domestic law and international legal sources.

    First, it is almost a truism to say that private law rules do not exist in a vacuum. Tort or contract law rules, for example, are considered as separate branches of the law for a number of purposes, but when the question is the allocation of responsibilities for the governance of certain risks, they surely come in as part of a larger picture. What is that picture? In particular, how do public law regimes interact with tort and contract law rules to regulate risk? As a preliminary point, although criminal law is present on the same scene as well, the role played by criminal law will not be explored in this context. Criminal law is mostly applied to individuals, while the accent here falls on the regulation of businesses.

    The second point explored in this chapter highlights the interaction between EU law and the national legal systems with respect to risk regulation. To achieve the ends set by the European Treaties, all the Member States of the European Union have come to share a huge of amount of law. EU law has a pervasive and profound influence on the content and shape of the national legal systems of Europe, requiring more harmonisation and more uniformity across Europe. Private law is deeply involved in this movement, to the point that some commentators have decried the instrumentalisation of private law by the law of the European Union. Prime examples of this trend are the subordination of consumer information to market integration and the framing of the Product Liability Directive as a maximum harmonisation tool to advance the same goal, which is prioritised over the goal of pursuing justice among the parties. The legal cultures of the Member States and their identity are still quite different, however. The Treaty on the European Union pledges to respect pluralism, and to protect the national identities of the Member States (Arts. 1(2) and 4(2) TEU). How do these elements play out in reality? How do they play out in Italy in particular?

  • Chapter 7 - How Dutch Tort Law Responds to Risks

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 165-194

  • Summary

    INTRODUCTION

    An important part of analysing Dutch tort law has been devoted to the way the law should and does deal with situations characterised by (technological or health) risk. Important focal points in the case law include the line of cases decided by the Dutch Supreme Court (Hoge Raad) concerning asbestos (prescription, duty of care, causation), the DES case (on alternative causation), and the District Court case dealing with the possible liability of the tobacco industry for the harms of smoking; however, the (lower) courts trying to handle litigation concerning workmen’ s diseases probably due to, for example, lead paint poisoning could also be alluded to. Perhaps the most famous recent example is the Urgenda case on climate change litigation.

    The concept of risk has therefore been an important trigger for judicial developments and thus in legal practice in the field of liability law (as tort is called in the Netherlands). Given that state of play, this chapter aims to advance our understanding of how liability in Dutch law does, and how it should, relate to risks. In doing so, we especially focus on how the tort law system can and/or should deal with new, until recently unknown risks (think of nanotechnology, new toxic substances and the like), looking at these risks from the current state of the law. Thus we seek to show how risk should be understood and constructed, how the Dutch legal system responds to risk and what legal techniques it uses to reduce risk.

    CONCEPTUALISATION OF RISK AND UNCERTAINTY

    LACK OF CONCEPTUALISATION IN RULINGS

    In their rulings, courts do not explicitly refer to definitions of risk and uncertainty, nor do they seem to be relying on established concepts of risk. For their part, Dutch scholars have only recently started to delineate the concepts of risk and uncertainty, relating them to liability law and highlighting the implicit links between risk and uncertainty on the one hand and case law and the distribution of responsibility for risks on the other hand.

    THE CONCEPT OF RISK

    In Ancient Greek, the term rhíza (which means ‘cliff’) denoted the ‘hazards of sailing too near to the cliff s: contrary winds, turbulent downdraughts and swirling tides.’ In Dutch, the term risico first appeared in 1525 and denoted the possibility of harm to trade and merchandise.

  • Chapter 21 - Epilogue: What does Risk-Reasoning Tell Us about Tort Law?

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 513-522

  • Summary

    RISK-BASED REASONING IN TORT

    In his concluding chapter, Matthew Dyson has clearly identified the core question addressed by the contributions to this volume: what does risk-based reasoning do for tort law? Doubtless there is no single neat answer to this question, and the answers suggested by the chapters are rich and fascinating in their variety. Of course, behind the question is a prior one – what is meant by ‘risk-based reasoning’? In his introduction and conclusion, Dyson points out that most, if not all, of the core questions of tort law can be and have been expressed in terms of risk. In this way, the language of risk has indeed become pervasive, at least in certain areas of the law of tort – some limits to the terrain on which this pervasiveness can be observed are explored below. He goes on to identify a number of reasons why it may be that the language of risk is so widely used. For example, he asks whether it is because this language is new (perhaps suggesting that it offers an escape from questions that have proved unanswerable, or can cut through language that has led to an impasse)? Or because it offers flexibility? Flexibility, certainly, has been a distinct characteristic of modern tort reasoning, and the conclusion to this epilogue argues that features of tort law which are linked to its flexibility (for example, its openness to policy reasons) are indeed compatible with the spread of risk-based reasoning.

    First, however, I would suggest – in reinforcement of these observations – that ‘risk-based reasoning’ is so oft en adopted because it is a means of translating normatively difficult questions, whose language does not easily enable a satisfactory answer, into reworked and more answerable questions. It is possible that some traditional tort concepts such as fault are diluted, or at least altered, in making this translation, and this is further touched on below. Arguably, the history of risk demonstrates that the core reason for its prevalence is that it has as its very purpose the facilitation of answers. In other words, risk-based reasoning may be deployed in different contexts because of its connection not with a particular kind of problem, but with routes to finding solutions to a broader range of issues.

  • Chapter 15 - Motor Vehicle Accidents Caused by Game Wandering onto Spanish Roads

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 361-374

  • Summary

    Spain is a country of many complex relationships: the centre's relationship with the ‘foral regions’ like Catalonia and the Basque country; religion and learning; humankind and animals. Spain's size and widely distributed historic cities mean there is room for diversity. It also means that two common activities can easily collide: the use of roads and the presence of animals. In particular, how Spanish tort law manages collisions or similar accidents between game and motor vehicles can unlock significant insights into how Spanish law conceives of, creates liability from and seeks to control risk. This area of law has recently undergone a significant change in legal regulation at the point where two strict liability regimes, one for hunters and one for drivers, overlap. That change has highlighted the politicisation of risk and liability in Spain and the role of legislative change in responding to perceived liability risk perhaps more than the risk of harm to others.

    GAME IN SPAIN

    Spain haof game onto public roads, driven by hunting or by shift s in the population s long been a country where hunting is a very important activity, not only in connection with culture and leisure, 1 but also for economic reasons. At the same time, hunting is something which divides society between those who hunt or earn a living from it, and those who oppose it for environmental or other reasons. The risks of the activity of hunting are significant. Hunting commonly involves guns, thus it is a source of risk in the sense described in the first Spanish chapter (Ch. 6); but hunting also involves the behaviour of wild animals themselves, and thus is a source of non-man-made possibilities of harm, i.e. danger in the sense pointed out already. A specific problem is the escape density.

    Accidents caused by escaping game have become a significant and technically complex area. According to a study carried out on behalf of an insurance company, the animals involved in motor vehicle accidents are mostly wild boars (33% of cases), dogs (30%) –obviously not game –or roe deer (17.5%).

  • Chapter 1 - Introduction

  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 1-20

  • Summary

    This book seeks to build towards an overarching conception of risk in legal theory, particularly of the linked role of risk-taking in generating liability and in liability regulating risk. Its purpose is to show what analysing and regulating in terms of risk adds to our understanding of legal phenomena.

    Sometimes risk-taking is a specific wrong in private law; sometimes it is wrongful only when harm results and in other situations it is only wrongful when some further requirement to harm, like fault, exists. On occasion, it has even been said that risk is a distinct harm itself or that causation can be satisfi ed by an increase in risk. There are some roles for risk-reasoning expressed through defences, or which trigger particular remedies, such as injunctions. Similarly, the objectives and methods of the law in seeking to shape risk are varied and under-researched: legislation, judge-made law, professional standards and guiding principles all play roles of varying kinds in the patchwork of regulation. This diversity, both within legal systems and across systems, inhibits a real understanding of risk and the role law can play in regulating it.

    The core purpose of the book is to show what benefit legal systems derive from deploying risk-reasoning. This involves understanding how ‘risk’ is used in different legal traditions and then assessing what benefit that use provides. Risk-reasoning could be used on at least three levels: first, a theoretical level (the conception of risk itself); second, on a liability-defining level (risk-taking generating liability, primarily for wrongs but including liability for non-wrongs); and third, from an instrumental angle (private law 's efforts to regulate risktaking). We therefore move from ‘risk’ as a conception, to discuss ‘risk-taking’ as a component of liability and as an activity to be regulated. A second-order aspect of the study is the role of legal actors in making decisions about risk, including the role of the state and insurers in legal phenomena.

    Taking tort law as a case study, the book analyses national variation in risk understanding, liability, culture and regulation, and from that develops a legal framework for understanding and responding to risk. Then, looking beyond tort, the book examines the contextual and cultural setting of different risks and how to regulate them, across legal systems.

  • Chapter 6 - Regulating Risk Through Private Law: The Spanish Approach

  • from Part I - Risk Overviews
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 139-164

  • Summary

    INTRODUCTION

    This chapter discusses how Spanish tort law regulates risk. The first part will deal with risk from a general perspective. As will be shown, risk (riesgo in Spanish) is one of the cornerstones of Spanish tort law. It is indeed impossible to understand how this tort law (responsabilidad extracontractual) has evolved during the last half-century and is currently shaped without making significant reference to the idea of risk. Therefore, this chapter will deal with the connections of risk with the general conditions of tort liability and will analyse how risk has infl uenced the judicial interpretation of tort law rules. Particular reference will also be made to some institutions or rules with regard to which risk plays a central role, namely development risks (riesgos del desarrollo), assumption of risk (asunci ó n del riesgo) and insurance.

    SPANISH TORT LAW IN THE ‘RISK SOCIETY’

    It may be interesting to note that, from a linguistic point of view, the English word ‘risk’ may have a Spanish origin.1 In fact, Spanish has two different words to refer to ‘risk’, namely peligro (danger) and riesgo (risk). Both of them are related to the Latin word periculum, and are therefore used interchangeably. The Latin root of riesgo (‘riesco’ in ancient Spanish) is resecare (‘to cut’), from which resecum (‘cutting’) also derives. There also seems to be some connection with another word, risco (a steep rock). According to the Royal Academy Dictionary, riesgo is the ‘contingency or proximity of damage’ and peligro means ‘ risk or imminent contingency that some evil takes place’. Riesgo is therefore any possible detrimental event that is capable of changing the normal and foreseeable course of an action or even unforeseeably altering a state of affairs.

    Risk is a concept that permeates many areas of Spanish law. In contract law, it mainly refers to the possibility of the object of the contract becoming impossible. Such a situation may arise not only in contract – especially in sales – but also with regard to other types of obligations, as in the case of dowries, guardianship or legacies. In these contexts, the concept of risk refers to the question of who should bear the damage after the loss of a thing.

  • Chapter 20 - What does Risk-Reasoning do in Tort Law?

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 455-512

  • Summary

    Reasoning about risk simultaneously challenges and enriches our understanding of private law. For our purposes, ‘risk-reasoning’ has meant analysing or explaining a legal phenomenon by reference to risk. Risk-reasoning might add, alter or take away from the law, but how and why does it do so? The core question this volume has examined is ‘what does risk-reasoning do for tort law’? The book has looked at that question from three perspectives:

  • 1. What is ‘risk’?

  • 2. How do legal systems generate liability from risk-taking?

  • 3. How do legal systems control risk-taking through imposing liability?

    • This chapter explores how our national legal systems have answered these questions. In short, it appears that risk-reasoning offers two different functions. First, risk has a normative function: it justifies and limits liability. It most commonly does so as a test for fault, by asking what risks were unreasonable to take. It is also often a claim that taking/generating/imposing particular risks which then eventuate can generate liability without regard to fault. Riskreasoning can also have effects on tort law, typically by reconceptualising what has been done to the victim (causation and damage/harm/loss), such as by treating loss of a chance or the imposition of a risk as a harm in themselves. Second, it has a non-normative function: claiming both to be more flexible as a form of reasoning and to better represent the reality that the law must govern.

    By way of very simple introduction, we might map our legal systems onto a spectrum of how relevant and how overt their risk-reasoning is. Fuller details follow in the rest of this chapter. As a baseline, all of our systems recognise risktaking as part of finding fault.

    At one end, representing a minimal role for risk-reasoning in tort liability, we have South Africa. Risk-reasoning is present within tort law, but not strongly influential. While a leading South African jurist, Van der Walt, did urge risktaking be a general ground of liability without fault, no such development has happened. The strong link to Roman law seems to have been a cultural brake against the development of a wide liability for risk-taking or even a general theory about risk-taking and no such theory is evident. South Africa's uncodified legal system has permitted historical, procedurally determined categories which resist substantive analysis and inhibit a unified pan-delictual theory of risk.

  • Chapter 17 - Sub Terra: Risk in the Chilean Mining Industry

  • from Part II - State of the national art on risk
  • Edited by Matthew Dyson
  • Book:
    Regulating Risk through Private Law
    Published by:
    Intersentia
    Published online:
    13 October 2018
    Print publication:
    31 January 2018, pp 399-418

  • Summary

    INTRODUCTION

    Chile is usually recognised as a mining country, the development of this old and established industry being one of the most important sources of work and economic development. From a legal perspective, the importance of this industry has even resulted in a constitutional clause guaranteeing the protection of property over mining concessions. The main regulation devoted to the exploitation of minerals is the current Mining Code. Despite the risks involved in mining, none of the Mining Code's provisions refer to the concept of risk, nor does it set out a coherent treatment of risk. However, several other sources – such as complementary or general statutes, administrative, labour and environmental regulations, and case law – flesh out how risk is treated in the mining industry.

    Mining is certainly a very attractive case study, as multiple key aspects of risk are inherent in this activity. The importance of risk is recognised from start to finish, before mines start their activity, during their operating life, and long after mine sites are closed. The risks involved can be classified by looking prospectively at the subject or object which is damaged as a result of the realisation of the risks arising – thus showing the lack or failure of preventive measures – from the mining activity, namely the environment, private property, and the life and health of miners, as well as the surrounding community. Moreover, mining is a particularly useful economic sector to examine from a risk perspective for two further reasons. First, it is pervaded by a relentless tension between socio-political and legal forces. The struggle between these forces can be seen in parliament, the administrative authorities, courts, trade unions, employers, the environment itself, and the community at large. Secondly, mining provides a neat illustration of the interaction between preventive measures and ex post remedies throughout the different stages of a given operation. In particular, extracontractual liability for harms ensuing from risks wrongfully and/or inefficiently dealt with stands out amongst a number of ex post responses provided by the Chilean legal system.

    As will be explained, the goal of minimising the risks involved in the development of mining activities is established in legal and administrative regulations of several kinds.

  • Preface

  • Gabriella Berki
  • Book:
    Free Movement of Patients in the EU
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    15 January 2018, pp ix-xii

  • Summary

    For, after all, the foundation of our whole nature, and, therefore, of our happiness, is our physique, and the most essential factor in happiness is health, and, next in importance after health, the ability to maintain ourselves in independence and freedom from care. There can be no competition or compensation between these essential factors on the one side, and honour, pomp, rank and reputation on the other, however much value we may set upon the latter. No one would hesitate to sacrifice the latter for the former, if it were necessary. We should add very much to our happiness by a timely recognition of the simple truth that every man's chief and real existence is in his own skin, and not in other people's opinions; and, consequently, that the actual conditions of our personal life, health, temperament, capacity, income, wife, children, friends, home, are a hundred times more important for our happiness than what other people are pleased to think of us: otherwise we shall be miserable.

    (Schopenhauer)

    Being a patient is possibly never easy. In the vast majority of cases, it is – at best – an inconvenient situation to be in. This unease might well be intensified if someone is seeing a doctor abroad in an unfamiliar setting. What are the obstacles a border-crossing patient faces and how can these barriers be overcome? These are the questions which particularly fascinated me during the years of my research. My ambition was to detect and to bring a better understanding of those legal issues which are potentially problematic when obtaining healthcare abroad and to examine whether these can be solved with the legal tools currently available on the European level. The main question behind this research was how the current landscape of European cross-border patient mobility legislation can be improved in a way that better serves patients’ interests while respecting the responsibilities of the Member States in this field.

    Principally, this book aims to analyse the European legal framework governing cross-border patient movements from a strictly patient-centred approach. I confess that as a social lawyer, my main interest is the social status of the individual.

  • Chapter 5 - Conclusions and Suggestions

  • Gabriella Berki
  • Book:
    Free Movement of Patients in the EU
    Published by:
    Intersentia
    Published online:
    11 October 2018
    Print publication:
    15 January 2018, pp 201-234

  • Summary

    The free countries of Europe must not only demonstrate concern for the maintenance of peace, security and the good organization of their economy; there is another concern we have no right to ignore – human beings. If there is one area where we must act generously, it is in the area of health. If there is one area that seems to lend itself to unification, it is in the struggle against disease.

    The main concept of the research has been to take a look beyond the words of the legislation, to make the patients the centre of interest and to bring a better understanding of the (potential) problems patients face when obtaining healthcare abroad. In searching for the answer as to whether free movement of patients exists in the European Union, the research led to the conclusion that the desired ‘borderless Europe ’ is yet far away for European patients and despite its benefits, the long-awaited Patient Mobility Directive (PMD) did not bring much change in this regard.

    One might wonder why it is so difficult to tackle the problems of crossborder healthcare, when it involves a comparatively limited number of patients and healthcare expenditure. In my opinion, the main reason is that the field of healthcare is a multi-player arena where many different interests (of patients, healthcare providers, healthcare funds, national governments, Union institutions, etc), different competences (basically of the Member States and various EU institutions, but also within the Member States where competences are often allocated at different levels, e.g. federal, regional, local) and different ideologies collide. This creates a tense political atmosphere in which patients’ well-being, which is supposed to be the starting point and the main aim of any health-related arguments, runs the risk of evaporating in the process. This might – at least partly – explain why, after almost sixty years of healthcare coordination and almost two decades since the ground-breaking judgments of the Court of Justice of the European Union (CJEU),European patients are still left with restricted cross-border mobility rights and impediments to free movement both from legal and non-legal points of view.

    In the former sections of this book I focused on the individual problems accompanying cross-border patient movements within the European Union and suggested some possible solutions to tackle them.

Page 212 of 386