The National Judiciary—Sword of European Court of Justice Rulings: The Example of the Kohll/Decker Jurisprudence

• Published date: 01 November 2008
• DOI: http://doi.org/10.1111/j.1468-0386.2008.00439.x
• Date: 01 November 2008
• Author: Andreas J. Obermaier

The National Judiciary—Sword

of European Court of Justice

Rulings: The Example of the

Kohll/Decker Jurisprudence

Andreas J. Obermaier1

Abstract: The role of the national judiciary in enforcing EC law, and particularly Euro-

pean Court of Justice (ECJ) rulings, has been largely neglected by empirical legal and

political science research. Existing research has categorised the role of the national

judiciary as either shielding national legislation from the ECJ or as serving as a ‘sword’ to

foster integration and to force change on reluctant governments. This article sides with the

second assumption and attempts to empirically assess it using the example of the patient

mobility jurisprudence by the ECJ, the so-called Kohll/Decker jurisprudence. The three

case studies on France, the UK and Germany show that national courts played an

important role in overcoming the resistance against this jurisprudence: via a multiplication

of national court cases that contradicted domestic legislation they forced the legislator to

end judicial uncertainty.

I Introduction

The role of the national judiciary in enforcing European Community (EC) law, par-

ticularly European Court of Justice (ECJ) rulings, has been largely neglected by empiri-

cal legal and political science research. Existing research has categorised the role of the

national judiciary as either shielding national legislation from the ECJ primarily by

withholding preliminary references (Article 234 EC) or as serving as its ‘sword’ to foster

integration and to force policy change on reluctant governments. These contradicting

views, however, have not been empirically assessed to a satisfying degree. This reluc-

tance stems in part from the methodological difficulties to find a direct link between

national court cases and the (legal) implementation of ECJ cases at the Member State

level. The example of the ECJ patient mobility jurisprudence provides an opportunity

to assess the role of the national judiciary. Initially, Member States fiercely rejected the

implementation of this jurisprudence: however, a number of Member States ultimately

conceded and implemented the rulings. National court cases played an important role

in this shift.

1Researcher at the Institute for European Integration Research, Austrian Academy of Sciences, Vienna.

Contact: andreas.obermaier@oeaw.ac.at. I would like to thank the following persons for their comments

and insights: Stephan Leibfried, Klaus Sieveking, Reinhard Slepcevic and Francis Snyder.

European Law Journal, Vol. 14, No. 6, November 2008, pp. 735–752.

© 2008 The Author

Journal compilation © 2008 Blackwell Publishing Ltd, 9600 Garsington Road, Oxford, OX4 2DQ, UK

and 350 Main Street, Malden, MA 02148, USA

The Kohll2and Decker3rulings challenged Article 22 (which deals with health care

entitlements abroad) of one of the oldest EEC regulations, ie Regulation 1408/71 on the

application of social security schemes to employed persons and their families moving

within the Community. Also, the ECJ applied the passive free movement of services, ie

the freedom to receive a service, and the free movement of goods to patients moving

within the Community and thus provoked a new challenge for the EU Member States.

Although the legal profession anticipated Kohll and Decker for many years,4these

rulings were considered an ‘explosive issue’.5Kohll and Decker were so important that

according to an anecdote from the German Ministry of Health, the very day of the

pronouncement of the rulings, a high-ranking official drove by car to Luxembourg in

the middle of the night to obtain the written version of the rulings, which was only

available in English at the time. In the following weeks, months, and years, these ECJ

decisions were intensely discussed and contested in the political, administrative and

academic arenas, as well as in the media. Many articles and books were written on Kohll

and Decker and their potential impact.6In some accounts, the possible destruction of

the domestic social security systems was evoked, while others reacted in a much more

reserved way.7However, Kohll and Decker were only the beginning: follow-up rulings

fine-tuned these cases, extending and limiting their scope simultaneously. The so-called

Kohll/Decker jurisprudence that has emerged comprises ten rulings which were deliv-

ered between 1998 and 2006; of high importance were the consequences of this juris-

prudence for the principle of territoriality enshrined in the national social security

systems.8In addition, the financial, political and structural costs of the implementation

of the Kohll/Decker jurisprudence were considered to be extremely high. Therefore, this

series of cases was contested by most of the EU Member States; its impact on the

individual social security systems was denied and implementation refused. Despite this

2Case C-158/96, Raymond Kohll v Union des Caisses de Maladie [1998] ECR I-1931.

3Case C-120/95, Nicolas Decker v Caisse de Maladie des Employés Privés [1998] ECR I-1831.

4See eg van der Mei, ‘The Kohll and Decker rulings: revolution or evolution?’, (1999) 5 eurohealth 14;

or B. Schulte, ‘“Decker/Kohll” und die Folgen. Fragen und Hypothesen’, in Y. Jorens and B. Schulte

(eds), Grenzüberschreitende Inanspruchnahme von Gesundheitsleistungen im Gemeinsamen Markt. Belgisch-

deutsch-niederländische Tagung in Antwerpen (Nomos, 2003).

5J. Gobrecht, ‘National reactions to Kohll and Decker’, (1999) 5 eurohealth 16, at 17.

6See eg E. Eichenhofer, ‘Das Europäische koordinierende Krankenversicherungsrecht nach den EuGH-

Urteilen Kohll und Decker’, (1999) 2 VSSR 101; Y. Jorens, ‘Impact de la jurisprudence la plus récente de

la Cour européenne de justice sur l’influence des règles relatives au marché intérieur sur les systèmes

nationaux de santé, plus spécialement les arrêts prononcés après décembre 2001: Les cas Müller-Fauré

Van Riet, Inizan et Leichtle’, (2004) 46 Revue Belge de Sécurité Sociale 379; S. Leibfried, ‘Social Policy:

Left to the Judges and the Markets?’, in H. Wallace, W. Wallace and M. A. Pollack (eds), Policy-Making

in the European Union (Oxford University Press, 2005); and K. Sieveking, ‘ECJ Rulings on Health Care

Services and Their Effects on the Freedom of Cross-Border Patient Mobility in the EU’, (2007) 9 EJML

25.

7The two contradicting positions can be seen eg in M. Ferrera, European Integration and National Social

Citizenship: Changing Boundaries, New Structuring?, Working Paper CIIP-3, 2003; and in U. Becker,

‘Brillen aus Luxemburg und Zahnbehandlung in Brüssel—Die Gesetzliche Krankenversicherung im

europäischen Binnenmarkt, zu EuGH v. 28.4.1998, Rs. C-120/95 (Decker), und EuGH v. 28.4.1998, Rs.

C-158/96 (Kohll)’, (1998) 8 NZS 359.

8According to Peter Altmaier, the principle of territoriality consists of two aspects: first, the national

sovereignty to determine whether and to what extent benefits are provided abroad. Second, the justifica-

tion and regulation of benefits nationally applies only to domestic cases without an equivalent for foreign

cases. See P. Altmaier, ‘Europäisches koordinierendes Sozialrecht—Ende des Territorialitätsprinzips?’, in

E. Eichenhofer and M. Zuleeg (eds), Die Rechtsprechung des Europäischen Gerichtshofs zum Arbeits-und

Sozialrecht im Streit (Bundesanzeiger, 1995), 73.

European Law Journal Volume 14

© 2008 The Author

736 Journal compilation © 2008 Blackwell Publishing Ltd.