A Review of the Creation by the European Court of Justice of the Right to Effective and Speedy Medical Treatment and its Outcomes

• Author: Alina Kaczorowska
• Date: 01 May 2006
• DOI: http://doi.org/10.1111/j.1468-0386.2006.00321.x
• Published date: 01 May 2006

A Review of the Creation by the European

Court of Justice of the Right to

Effective and Speedy Medical Treatment

and its Outcomes

Alina Kaczorowska*

Abstract: This article is in two parts. The f‌irst part examines a number of judgments deliv-

ered by the Court of Justice of the European Communities since 1998, all of which relate

to the free movement of medical services covered by national healthcare schemes of the

Member States. It then demonstrates that these judgments, when construed cumulatively,

reveal that not only have all EU citizens insured under national healthcare schemes been

accorded the right to obtain effective and speedy medical treatment anywhere in the EU,

in the event that their home national healthcare fails to provide this, but also that the cost

of such treatment shall be borne by their home national insurance scheme. The fact that

the new right has developed despite each Member State having exclusive competence with

respect to the organisation and f‌inancing of its healthcare system is commented upon. The

second part suggests and discusses risks and limitations currently surrounding the right

and its exercise, and indicates challenges that the new right poses for the national health-

care systems of the Member States.

I Introduction

Article 35 of the Charter of Fundamental Rights (CFR) of the European Union1states

that everyone has the right of access to preventive health care and the right to benef‌it

from medical treatment, albeit that these rights are to be exercised under the condi-

tions established by national laws and practices, and further states that a high level of

human health protection shall be ensured in the def‌inition and implementation of

all EU policies and activities. Although the Charter of Fundamental Rights has no

binding force at the time of writing,2the political signif‌icance of its Article 35 should

not be underestimated. The right set out in this provision has, in the author’s opinion,

European Law Journal, Vol.12, No. 3, May 2006, pp. 345–370.

© 2006 The Author

Journal compilation © 2006 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

*Professor of EU and International Law,The University of the West Indies, Cave Hill Campus,Barbados.

1OJ C 364 18/12/2000 at 1.

2The Charter of Fundamental Rights is set out as Part II of the Treaty Establishing a Constitution for

Europe. Article 35 of the Charter has become Article II-35 of Title IV on Solidarity of Part II of the EU

Constitutional Treaty.

inf‌luenced the political debate within the EU on the future of national health systems

and health policies across the EU. Furthermore, it is highly likely that Article 35 CFR

has inspired the Court of Justice of the European Communities and other EU

institutions to develop and embroider a new right to effective and speedy medical

treatment.

So far as the Court of Justice is concerned, it has, since the commencement of the

new millennium, been active in developing the new right for EU citizens insured under

national sickness insurance schemes. This is the right to obtain effective and speedy

medical treatment from their own Member State, or, if this is not available, then

from any other Member State. The manner in which this new right has been created

is surprising, taking into account that, f‌irst, EC law does not apply to ‘purely

domestic situations’3and, second, the EU has no competence to harmonise national

healthcare systems. By virtue of Article 152 (5) EC the Member States have exclusive

competence in respect of the organisation and delivery of health services and medical

care.

The Court of Justice has managed to create and develop the new right by, on the

one hand, f‌inding a ‘cross-border element’ when a person who is insured under a

national healthcare system, but is unable to obtain adequate medical treatment in his

home Member State, has exercised his right under Article 49 EC and has sought such

treatment in another Member State and, on the other hand, applying the rules of the

internal market, in particular Articles 49 and 50 EC, to healthcare services covered by

national health insurance schemes. So far as EU institutions other than the Court of

Justice are concerned, the relevant case law of the Court of Justice has been promptly

incorporated into their political and legal agenda. This is evidenced, inter alia,by a

recent amendment to Regulation 1408/71,4a Proposal for a Directive on Services in the

Internal Market,5which also covers medical services provided within the framework of

national heathcare schemes, a Proposal for a Directive on the Mutual Recognition

of Professional Qualif‌ications,6which covers recognition of medical qualif‌ications,

and by the European Commission initiatives taken within the High Level Ref‌lection

European Law Journal Volume 12

346 © 2006 The Author

Journal compilation © Blackwell Publishing Ltd. 2006

3See for example: Case 175/78 La Reine v Vera Ann Saunders [1979] ECR 1129; Case 20/87 Ministère Public

v André Gauchard [1987] ECR 4879; Cases 35 and 36/82 Elestina Esselina Christina Morson v State of the

Netherlands and Head of the Plaatselijke Politie within the meaning of the Vreemdelingenwet; Sweradjie

Jhanjan v State of the Netherlands [1982] ECR 3723.

4Regulation 1408/71 was amended by Regulation 631/2004 of the European Parliament and of the Council

of 31 March 2004 (OJ L 100, 6/4/2004) 1) in order to implement the conclusion of the Barcelona Euro-

pean Council of 15 and 16 March 2002 regarding the creation of a European Health Insurance Card,

which replaces the paper forms needed for health treatment in a Member State other than the Member

State where the person is insured.The amendment, however, exceeded this objective and introduced impor-

tant changes to Regulation 1408/71 such as simplifying the procedures imposed on insured persons who

need medical treatment in the Member State of a temporary stay, abolishing the distinction between dif-

ferent types of healthcare available depending upon the category to which the insured person belongs

(under the old Regulation some groups, i.e. employed and self-employed persons, were entitled to receive

immediately necessary benef‌it in kind but only in an emergency, whilst other groups i.e. pensioners and

members of their families, were entitled to receive necessary benef‌it in kind not only in medical emergen-

cies but also in some other situations), and clarifying the relationship between the social security institu-

tions and the persons insured.

5COM/2004/0002f‌inal-COD 2004/000, in particular Article 23 of the Proposal.

6The Proposed Directive simplif‌ies and clarif‌ies procedures for recognition of qualif‌ications and

provides for automatic recognition of qualif‌ications for some health professionals, COM(2002) 119 f‌inal,

07.03.2002.