Access to Health Care: Art. 35 CFR and the Limit of Sickness Insurance
In the Decker and Kohll cases, the Court established that health care services provided as economic services to patients fall within the scope of the provisions on the free movement of services.102 In principle, Union citizens have a right, as service recipients, to access health care in another Member State which is financed by the public social insurance system. In this way the Court established a general right of access to health care in another Member State at the expense of the country where the subject is insured.
However, contradictions still remain, since some less important treatments could not be included in the medical services which can be reimbursed by the public health systems.103 As a consequence, the EUCJ must seek and find coherence because the limits imposed by EU law on the right of the State to define the situations in which the public funding could reimburse the cost of the treatment still need further clarification.104 Health care is an inviolable human right which should not be limited to nationals of the host State.105 Art. 35 CFR states that everyone has the right to access medical care, subordinating that right to the conditions determined by national legislation and practice. AG Colomer has recently emphasized this aspect underlining that “although the case law takes as the main point of reference the fundamental freedoms established in the Treaty, there is another aspect which is becomingmore and more important in the Community sphere, namely the right of citizens to health care, proclaimed in Article 35 of the Charter of Fundamental Rights of the European Union [and] perceived as a personal entitlement, unconnected to a person’s relationship with social security, and the Court of Justice cannot overlookthat aspect.”106 Therefore, the main concern of the health care system is not the capacity of the citizen to pay, but only his medical needs.
This approach suggests that the limit of health insurance could be inconsistent with the fundamental right stated in Art. 35 CFR. Therefore, the case law related to access to health care must take into account the fundamental right of the EU citizen and examine the case on the basis of the free movement of citizens and no longer relegate nationals of the Member States to the legal limbo of service recipients. In the future similar cases should not be analysed on the basis of Art. 56(1) TFEU,107 but pursuant to Art. 21 TFEU, in combination with Art. 35 CFR. The Charter could then strengthen the role of Union citizenship and provide it with an effective and definitive fundamental status.
Finally, even though Art. 35 CFR does not make a clear reference to legal intra-community movement, the analogy with Art. 34 CFR and the general prohibition contained in Art. 54 CFR108 should prevent abusive conduct: a citizen cannot benefit from free movement only to obtain in another Member State medical treatment which his State of residence does not reimburse.109
AG La Pergola explained that the ultimate aim of the citizenship provisions was to establish an “increasing equality between citizens of the Union, irrespective of their nationality”.110 This statement suggests that under the previous regime one could expect a certain degree of financial solidarity, but differences would still exist between nationals and Union citizens. As illustrated at the beginning of this contribution, access to public benefits is not based on the equality of Union citizens. A first discrimination exists between ‘needy’ citizens who could artificially be included in the Treatyprovisions concerning economically active people and indigents for whom inclusion is excluded. A second discrimination derives from the ‘incremental approach’ which links the rights of EU citizens to their period of residence in the host country.
This situation could change with the entry into force of the Lisbon Treaty since it appears to be in contrast with Art. 9 TEU, which states that “[i]n all its activities, the Union shall observe the principle of the equality of its citizens, who shall receive equal attention from its institutions, bodies, offices and agencies”. The principle of equality can play an important role by influencing the EUCJ’s case law concerning ‘reverse discriminations’,
111 but also by allowing Union citizens free movement regardless of their income. The emphasis on equality of citizens will avoid situations in which the principle of proportionality is applied strictly, like in Petersen, 112 and cases in which it is used very loosely,113 like in Förster,114 causing disparities of treatment.
In fact, the codification of EU fundamental rights in the Charter enhances the role of the EUCJ, acting as a constitutional judge, giving the latter the possibility to further broaden the personal scope of application of EU citizens’ right to free movement. With a binding Charter, the EUCJ will be able to rely on concrete rights contained in both the Title on Citizens’ Rights and in the Title on Solidarity, rather than on indefinite principles such as the principle of proportionality.
A first step towards abandoning any consideration as to the individual’s degree of integration within the host society can be found in a recent case concerning the Dutch legislation and administrative practice on the residence right of non-active citizens of the Union.115 Here, the EUCJ found that the Netherlands had violated Community law by requiring that inactive and retired EU citizens demonstrate the ability to afford a stay of at least 1 year in the host Member State. Of course, more advanced interpretations based on the binding Charter provisions are possible and could determine further protection for other categories of inactive persons.
102.Case C-120/95 Decker  ECR I-1831 and Case C-158/96 Kohll  ECR I-1931.
103.Case C-385/99 Müller-Fauré  ECR I-4509, para 98.
104.The need of coherence is more than justified since the 2008 Proposal for a Directive of patients’ rights in cross-border healthcare [COM(2008) 414 final] is based on the principles of free movement as an alternative mechanism to the authorisation procedure of Council Regulation (EEC) 1408/71 on the application of social security schemes to employed persons and their families moving within the Community,  OJ L 149/ 2–50.
105.Appl. No 30240/96, D. v. The United Kingdom, (1997) ECHR Reports 1997-III
106.Case C-444/05 Stamatelaki  ECR I-3185, AG Colomer, para 40.
107.Art. 56(1) TFEU states that “restrictions on freedom to provide services within the Union shall be prohibited in respect of nationals of Member States who are established in a Member State other than that of the person for whom the services are intended”.
108.Art. 54 CFR reads: “[n]othing in this Charter shall be interpreted as implying any right to engage in any activity or to perform any act aimed at the destruction of any of the rights and freedoms recognised in this Charter or at their limitation to a greater extent than is provided for herein”. On the notion of abuse of law, see generally M. Gestri, ‘Abuso del diritto e frode alla legge nell’ordinamento comunitario’ (Giuffrè, 2003), in particular Chapter 1.
109.K. Coldron and L. Ackers, ‘(Ab)using European Citizenship? EU retired migrants and the exercise of healthcare rights’, (2007) 14 Maastricht Journal of European and Comparative Law 299.
110.Joined Cases C-4 and C-5/95 Stöber and Pereira  ECR I-511, AG La Pergola, para 50.
111.L.S. Rossi, ‘Uguaglianza-Cittadinanza’, in L.S. Rossi (ed.), Carta dei diritti fondamentali e Costituzione dell’Unione europea (Giuffrè, 2002) 113–114.
112.Case C-228/07 Petersen  ECR I-6989.
113.D. Martin, ‘Comments on Förster (Case C-158/07 of 18 November 2008), Metock (Case C-127/08 of 25 July 2008) and Huber (Case C-524/06 of 16 December 2008)’, (2009) 11 European Journal of Migration and Law 100.
114.Case C-158/07 Förster, n. 51 above.
115.Case C-398/06 Commission v Netherlands  ECR I-56 (summary publication).