Abstract
The chapter aims to analyse whether it is possible to argue the existence of a status of ‘patient’ in the EU framework and, if it exists, what its prerogatives (i.e. rights and duties) are and how it is being conditioned by contemporary EU law. In this framework, the analysis is focused on: (1) the existence, at the EU level, of a concept of patient as an individual status; (2) the meaning of this status, i.e. whether it is instrumental to the creation of new privileges undermining the goal of achieving substantive equality between EU citizens or—on the contrary—to the operation of EU law (based on TEU Articles 2, 3, and 6); and (3) the building of a unitary definition of the legal status of the patient over that constructed by a particular Member State’s legal system. This implies taking into account certain important elements of the EU integration process, such as: (1) the enlargement of community policies—especially since the Maastricht Treaty—beyond the original core of the economic and monetary union; (2) the ECJ case law and European Commission position about the legal nature of social services, under certain conditions, as services of general economic interest to be managed according to the EU rules; (3) the economic crisis and the role played by the EU and Member States to face it; (4) the aftermath of the financial crisis as regards the relationship between the EU and Member States, the decreasing capacity of the Member States to finance social services at the national level; (5) the crisis of the EU integration process and the attempt of the EU to face it, for instance, with its strategy based on the European Pillar of Social Rights (EPSR).
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Notes
- 1.
To be more precise, Article 2 declares that the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and human rights, and that these values are common to the Member States in a society in which pluralism, nondiscrimination, tolerance, justice, solidarity and equality between women and men prevail. Article 3 lists the following among the aims of the EU: well-being, sustainable development, social market economy, full employment, social progress, and combating social exclusion and discrimination. Finally, Article 6 establishes that the Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union, which has the same legal value as the EU Treaties.
- 2.
European Convention on Human Rights, adopted by the Member States of the Council of Europe.
- 3.
Both the ECJ and ECoHR tried to check the existence of reasonableness in those sources of law, which established, for instance, some limits to social rights on the basis of national citizenship, see ECJ Case C-209/03 Bidar [2005]; ECoHR Application P-46368/06 Zeïbek v. Greece [2009]; ECoHR Application P-5335/05 Ponomaryovi v. Bulgaria [2011].
- 4.
Article 9. As regards this issue, since the beginning of the new millennium, the ECJ has declared that the protection of health should prevail over economic development, see ECJ Case C-236/01 Monsanto Agricoltura s.p.a. v. President of Council of Ministries [2003]: this seems to imply, among others, the application of the precautionary principle.
- 5.
Article 151.
- 6.
Articles 45–48.
- 7.
Articles 151–161.
- 8.
Article 168.
- 9.
EU Charter of Fundamental Rights, which has the same legal value as the EU Treaties according to TEU Article 6, but is essentially aimed just at making the national fundamental rights more visible.
- 10.
Article 35.
- 11.
For instance, as regards healthcare, because “access to high-quality […] services can reduce health inequalities, social exclusion and poverty, key objectives of the Europe 2020 strategy”, Eurofound (2014). In fact, from a wider ranging perspective, access to high-quality ‘services of general interest’ (among which healthcare is a key-service) is an important aspect of social protection, contributing to ‘inclusive growth’, a main objective of the Europe 2020 Strategy (EU Commission, 2010).
- 12.
European social model.
- 13.
Coming from the ECJ and European Commission.
- 14.
See COM (2006), 2006/177, of the EC Commission, Implementing the Community Lisbon programme: Social services of general interest in the European Union; COM (2006), SEC 1195/4, of the EC Commission, Consultation on a community action in the field of healthcare services; COM (2007), 2007/725, of the EC Commission, Accompanying the Communication on “A single market for 21st century Europe”—Services of general interest, including social services of general interest: a new European commitment; Sorace (2010, pp. 1 ss.); Merusi (2010, pp. 313 ss.); Civitarese Matteucci (2009, pp. 179 ss.); Gobbato (2005, pp. 797 ss.). For further discussion on the themes developed in this chapter, see: Antoniazzi (2004); Carboni (2016); Chenal (2010); Da Costa and Borges (2011); Guazzarotti (2016); Henry and Chauviere (2011); Hervey (2002); Hetzel (2012); Kaczorowska (2006); Kilpatrick and De Witte (2014); O’Cinneide (2013); Repetto (2013); Streeck (2000).
- 15.
At present established in TFEU Article 56.
- 16.
See ECJ Case C-238/82 Duphar Bv et al. [1984]; ECJ Case C-204/90 Bachmann v. Belgium [1992]; ECJ Case C-158/96 Kohll v. Union des caisses de maladie [1998].
- 17.
See ECJ Case C-211/08 Commission v. Spain [2010]; ECJ Case C-368/98 Vanbraekel [2001]; ECJ Case C-255/09 European Commission v. Portuguese Republic [2011].
- 18.
See ECJ Case C-157/99 Smits v. Peerbooms [2001].
- 19.
This action has been also accompanied by many not binding, and even important, sources of law: see, among others, COM (2006), SEC 1195/4, 26 September 2006, Consultation on a community action in the field of healthcare services.
- 20.
The first framework legislation on this issue, i.e. Regulation 1971/1408/EEC, on the application of social security schemes to employed persons and their families moving within the Community, just regards these recipients and establishes, in the field of healthcare, the right of the employed person to receive: (1) immediate care during a stay in the territory of another Member State, (2) scheduled care in kind from the State where he stays or resides with funds covered by the NHS to which he belongs, and (3) benefits in cash for healthcare covered by his NHS, expendable in the State where he stays or resides. Both the benefits to which rights (2) and (3) above refer are conditional, as a general rule, on the authorisation of the NHS to which the employed person belongs. These measures have been adopted pursuing the aim of the abolition of any discrimination based on nationality between workers of the Member States (at present enshrined in TFEU Articles 45 and 46).
- 21.
Adopted in light of the approximation of laws on the internal market and policies in the field of public health according to TFEU Articles 114 and 168.
- 22.
However, the directive also mentions the possibility of a direct payment by the State of affiliation.
- 23.
The directive also establishes the mutual recognition of prescriptions for a medicinal product or device issued in the Member States—if the medical product or device is authorised to be marketed in the territory of one of them—unless the special conditions allowing restrictions to recognition exist.
- 24.
European Reference Networks.
- 25.
Involving more than 900 highly specialised healthcare units from over 300 hospitals in 26 EU countries, with the aim of facilitating the discussion on complex or rare diseases, even concentrating knowledge and resources.
- 26.
In order to ensure that patient needs are duly taken into account.
- 27.
See EC Council Resolution of 2 December 2003 on pharmaceuticals and public health challenges—focusing on the patients; EC Council Recommendation of 9 June 2009 on patient safety, including the prevention and control of healthcare-associated infections (as regards patient safety, the recommendation itself clarifies that it consists of the “freedom, for a patient, from unnecessary harm or potential harm associated with healthcare”); Directive 1993/42/CE concerning medical devices.
- 28.
See EEC Council Resolution of 16 June 1986, concerning the protection of dialysis patients by minimising the exposure to aluminium.
- 29.
Instrumental to increasing economic development, supra.
- 30.
Since, according to its preamble, a stronger focus on social performance is particularly important to strengthen the Economic and Monetary Union.
- 31.
Within their competences in accordance with the principles of subsidiarity and proportionality.
- 32.
Common fiscal policy.
- 33.
Though it may be considered implied in the concept of “everyone” having “the right to timely access to affordable, preventive and curative health care of good quality”, like the EChFR Article 35.
- 34.
For instance, in the fields of medicines, dialysis patients or membership of the ERNs.
- 35.
Information, participation, access, privacy, complaining, minimized exposure to risks.
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D’Angelosante, M. (2019). Patient. In: Bartolini, A., Cippitani, R., Colcelli, V. (eds) Dictionary of Statuses within EU Law. Springer, Cham. https://doi.org/10.1007/978-3-030-00554-2_52
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