Abstract
In reply Jesus said: “A man was going down from Jerusalem to Jericho, when he fell into the hands of robbers. They stripped him of his clothes, beat him and went away, leaving him half dead. A priest happened to be going down the same road, and when he saw the man, he passed by on the other side. So too, a Levite, when he came to the place and saw him, passed by on the other side. But a Samaritan, as he travelled, came where the man was; and when he saw him, he took pity on him. He went to him and bandaged his wounds, pouring on oil and wine. Then he put the man on his own donkey, took him to an inn and took care of him. The next day he took out two silver coins and gave them to the innkeeper. ‘Look after him’, he said, ‘and when I return, I will reimburse you for any extra expense you may have’.”
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Notes
- 1.
The New Testament of the Christian Bible, Luke 10: 25–37. This quoted English version has been found on the internet. The present chapter constitutes a revised version of a paper presented at the Conference: ‘Health Care and EU Law’, 1–2 October 2009 (Radboud University Nijmegen). Generally, material which has come to my knowledge after 1 February 2010 has been left out of consideration.
- 2.
- 3.
Mossialos and McKee (2004), p. 21.
- 4.
See in this regard Neergaard et al. (2010).
- 5.
The concept ‘SGEIs’ refers to ‘services of general economic interest’.
- 6.
General Court, Case T-289/03 BUPA [2008] ECR II-81. See also General Court, Case T-289/03 (Order) BUPA [2008] ECR II-741.
- 7.
In other words, a full account of the subject is not possible here.
- 8.
See, for example, Hesselink (2009), pp. 20–45.
- 9.
In this regard, see further Sect. 2.6 infra.
- 10.
- 11.
Now Articles 36, 45(3), and 52(1) TFEU. In addition to the three provisions mentioned, for the sake of completeness reference could also be made to the original Article 135 EEC.
- 12.
Pursuant to Article 19 TEU, the terminology regarding the European Courts now is: ‘The Court of Justice of the European Union shall include the Court of Justice, the General Court and specialised courts…’ This terminology is used throughout the present chapter, also in situations of reference to case law rendered before the entering into force of the Treaty of Lisbon 2009. Therefore, what often has been referred to as the European Court of Justice will here be referred to as the Court of Justice (except for references in footnotes to specific cases, where ‘ECJ’ is used), and what often has been referred to as the Court of First Instance will here be referred to as the General Court.
- 13.
- 14.
The evolution of the changes will not systematically be dealt with here. It is worth emphasising that the Proposal for a Directive of the European Parliament of the Council on the application of patients’ rights in cross-border healthcare, COM(2008) 414, Brussels 2 July 2008 (hereinafter referred to as the ‘Directive Proposal’), which was launched before the entry into force of the Treaty of Lisbon 2009 would have its legal basis in Article 95 EC (now Article 114 TFEU). It is stated at p. 8 that: ‘This proposal respects the fact that health systems are primarily the responsibility of Member States and fully respects the responsibilities of the Member States for the organisation and delivery of health services and medical care in accordance with Article 152 TEC. Article 95(3) of the Treaty further stipulates that the Commission, in its proposals for the establishment and functioning of the internal market concerning health, shall take as a basis high level of protection of health, taking account in particular of any new development based on scientific evidence. In preparation of this proposal, the Commission took fully into account the most recent research results and the current best medical practice. Several expert studies, analyses and research reports were used in the preparatory work. The proposal will thus ensure that the necessary requirements for high-quality, safe and efficient healthcare are also ensured for cross-border healthcare.’ Regarding the case law of the Court of Justice, see in particular Sect. 2.5.3 infra.
- 15.
See the chapter by Szyszczak.
- 16.
The predecessor in the Treaty of Nice 2000 was Article 152(5) EC where it was stated that: ‘Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. In particular, measures referred to in paragraph 4(a) shall not affect national provisions on the donation or medical use of organs and blood.’ Especially, it is of interest that ‘fully’ has disappeared in the Treaty of Lisbon 2009. It is also of interest that in the Directive Proposal it is stated at p. 9 that: ‘According to Article 152(5) of the EC Treaty Community action in the field of public health is to fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. As confirmed by the Court, that provision does not, however, exclude the possibility that the Member States may be required under other Treaty provisions, such as Article 49 EC of the EC Treaty, or Community measures adopted on the basis of other Treaty provisions, to make adjustments to their national healthcare and social security systems. As the Court held, this does not mean that this undermines their sovereign powers in the field. In any event, Member States are responsible for the organisation and delivery of health services and medical care. They are in particular responsible for determining which rules will apply to the reimbursement of patients and to the provision of healthcare. This proposal changes nothing in this respect. It is important to underline that this initiative does not alter the Member States' choice of the rules which will be applicable to a specific case.’ The provision was first introduced in the Treaty of Maastricht 1992 (as Article 129 EC).
- 17.
See further Hervey and McHale (2004), Chapter 3.
- 18.
For the sake of completeness, it may be added that references to health (besides what has already been indicated) is also made in Articles 9, 114, 153, 169, 191, 202, 207 TFEU as well as Declaration on Article 168(4)(c) of the TFEU. In addition, see especially Article 35 of the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg, on 12 December 2007. The Charter shall pursuant to Article 6 of the TEU have the same legal value as the Treaties. Also, besides the many mentioned provisions and the principles of free movement it should for the sake of completeness be emphasised that competition law provisions may be of relevance. Finally, other legal basis provisions and principles may be of relevance. Concerning legal base in the context of the Directive Proposal see the chapter by Szyszczak.
- 19.
See Hervey and McHale (2004), p. 80.
- 20.
See for one of the more recent contributions, for example, van de Gronden (2008), pp. 705–760. Also, several other chapters of the present volume deal with this case law in detail; see the chapter of Baquero Cruz.
- 21.
The analysis is limited to primary law issues, and will not include, for example, social security regulation, which may also be of significance, as a main theme. In this regard, see in particular the chapter of Pennings. Also, as indicated, only primary law concerning free movement of services is included. These delimitations of the analysis may have an impact on the conclusions reached, however, not fundamentally.
- 22.
ECJ, Joined Cases 286/82 and 26/83 Luisi and Carbone [1984] ECR 377. See the chapter by Baquero Cruz.
- 23.
Para 16 states: ‘It follows that the freedom to provide services includes the freedom, for the recipients of services, to go to another member state in order to receive a service there, without being obstructed by restrictions, even in relation to payments and that tourists, persons receiving medical treatment and persons travelling for the purpose of education or business are to be regarded as recipients of services.’
- 24.
ECJ, Case 131/85 Gül [1986] ECR 1573.
- 25.
Ibid., para 17.
- 26.
ECJ, Case C-158/96 Kohll [1998] ECR I-1931, paras 45–46. See also the related case, however, concerning free movement of goods, rendered on the same date: ECJ, Case C-120/95 Decker [1998] ECR I-1831. See for further discussion of this case, Chapter 4.
- 27.
Ibid., para 34.
- 28.
Idem.
- 29.
Ibid., para 35.
- 30.
Ibid., para 41.
- 31.
Ibid., para 48.
- 32.
Ibid., para 50.
- 33.
ECJ, Case C-157/99 Smits-Peerbooms [2001] ECR I-5473.
- 34.
Ibid., para 43.
- 35.
Idem.
- 36.
Idem.
- 37.
Ibid., paras 44–46.
- 38.
Ibid., para 53.
- 39.
Ibid., para 69.
- 40.
Ibid., para 68.
- 41.
Ibid., paras 72–74.
- 42.
More specifically, the Court of Justice concludes that: ‘Article 59 of the EC Treaty (now, after amendment, Article 49 EC) and Article 60 of the EC Treaty (now Article 50 EC) do not preclude legislation of a Member State, such as that at issue in the main proceedings, which makes the assumption of the costs of treatment provided in a hospital located in another Member State subject to prior authorisation from the insured person’s sickness insurance fund and the grant of such authorisation subject to the condition that (i) the treatment must be regarded as ‘normal in the professional circles concerned’, a criterion also applied in determining whether hospital treatment provided on national territory is covered, and (ii) the insured person’s medical treatment must require that treatment. However, that applies only in so far as—the requirement that the treatment must be regarded as ‘normal’ is construed to the effect that authorisation cannot be refused on that ground where it appears that the treatment concerned is sufficiently tried and tested by international medical science, and—authorisation can be refused on the ground of lack of medical necessity only if the same or equally effective treatment can be obtained without undue delay at an establishment having a contractual arrangement with the insured person’s sickness insurance fund.’
- 43.
ECJ, Case C-368/98 Vanbraeckel [2001] ECR I-5363.
- 44.
Ibid., para 53.
- 45.
ECJ, Case C-385/99 Müller-Fauré [2003] ECR I-4509, para 37.
- 46.
More precisely, the Court of Justice concludes that: ‘Article 59 of the EC Treaty (now, after amendment, Article 49 EC) [now Article 56 TFEU] and Article 60 of the EC Treaty (now Article 50 EC) [now Article 57 TFEU] must be interpreted as not precluding legislation of a Member State, such as that at issue in the main proceedings, which (i) makes the assumption of the costs of hospital care provided in a Member State other than that in which the insured person's sickness fund is established, by a provider with which that fund has not concluded an agreement, conditional upon prior authorisation by the fund and (ii) makes the grant of that authorisation subject to the condition that such action is necessary for the insured person's health care. However, authorisation may be refused on that ground only if treatment which is the same or equally effective for the patient can be obtained without undue delay in an establishment which has concluded an agreement with the fund…’.
- 47.
Ibid., para 46.
- 48.
Idem.
- 49.
More precisely, the Court of Justice concludes that: ‘… Articles 59 and 60 of the Treaty [now Articles 56 and 57 TFEU] do preclude the same legislation in so far as it makes the assumption of the costs of non-hospital care provided in another Member State by a person or establishment with whom or which the insured person's sickness fund has not concluded an agreement conditional upon prior authorisation by the fund, even when the national legislation concerned sets up a system of benefits in kind under which insured persons are entitled not to reimbursement of costs incurred for medical treatment, but to the treatment itself which is provided free of charge.’
- 50.
ECJ, Case C-56/01 Inizan [2003] ECR I-12403.
- 51.
Ibid., para 60.
- 52.
Idem.
- 53.
ECJ, Case C-8/02 Leichtle [2004] ECR I-2641.
- 54.
Ibid., para 29.
- 55.
Ibid., para 35.
- 56.
Case C-372/04 Watts [2006] ECR I-4325.
- 57.
Ibid., para 90.
- 58.
Ibid., para 92. See further the chapter by Baquero Cruz.
- 59.
Ibid., para 123.
- 60.
Ibid., para 145.
- 61.
Ibid., paras 146–147.
- 62.
Ibid., para 98.
- 63.
Ibid., paras 99–100.
- 64.
Ibid., paras 103–105.
- 65.
Ibid., para 123.
- 66.
Idem.
- 67.
Ibid., para 143.
- 68.
ECJ, Case C-444/05 Stamatelaki [2007] ECR I-3185. However, see also ECJ, Case C-212/06 Gouvernement de la Communauté francaise [2008] I-1683, where it, amongst others, is held that: ‘On a proper construction of Articles 39 EC and 43 EC, legislation of a federated entity of a Member State limiting affiliation to a social security scheme and entitlement to the benefits provided by that scheme only to persons residing in that entity’s territory is contrary to those provisions, in so far as such limitation affects nationals of other Member States working in that entity’s territory or nationals of the Member State concerned who have made use of their right to freedom of movement within the European Community.’ In addition, see also ECJ, Case C-208/07 von Chamier-Glisczinski, 16 July 2009, ECR I-0000 (n.y.r)., para 76, where it is held, that Article 49 EC (now Article 56 TFEU) is not applicable because the person involved did not move to Member State in question, namely Austria, on a temporary basis, but rather that this person had fixed her residence on a stable basis in that Member State without a foreseeable limit to its duration. This decision contains important guidelines as to Article 18 EC (now Article 21 TFEU) in the context of health care. See in this regard in particular paras 80 et seq. For a discussion of this case, see the chapter by Baquero Cruz.
- 69.
Ibid., para 38.
- 70.
Ibid., para 35.
- 71.
Ibid., para 36.
- 72.
Therefore, it is rather surprising that the Danish Economic Councils in a recent report concerning health expenditure and financing in Denmark did not in any way include the present and future effect of EU law; see De Økonomiske Råd (2009).
- 73.
See also van de Gronden (2008), p. 759, who finds that the approach of the Court of Justice ‘… inevitably leads to the harmonization of several aspects of the organization of national health care systems.’
- 74.
See, however, for example, ECJ, Case C-567/07 Sint Servatius, 1 October 2009, ECR I-0000 (n.y.r.).
- 75.
BUPA, para 165.
- 76.
Hereinafter referred to as ‘NESGIs’.
- 77.
- 78.
See in the same direction, for example, Ross (2007), pp. 1057–1059.
- 79.
See in this context BUPA, para 162, where it is stated that: ‘It is common ground between the parties that the concept of public service obligation referred to in that judgment corresponds to that of the SGEI as designated by the contested decision and that it does not differ from that referred to in Article 86(2) EC’.
- 80.
BUPA, para 207.
- 81.
BUPA, para 172.
- 82.
Idem.
- 83.
BUPA, para 178.
- 84.
Idem.
- 85.
Idem.
- 86.
BUPA, para 179.
- 87.
Idem.
- 88.
Idem.
- 89.
BUPA, para 181.
- 90.
General Court, Case T-17/02 Fred Olsen [2005] ECR II-2031, para 216. What exactly could constitute a ‘manifest error’ is not yet developed.
- 91.
BUPA, paras 166–170. In addition, see General Court, Case T-442/03 SIC [2008] ECR II-1161, para 195. Finally, especially regarding this issue in the context of public broadcasting services, see General Court, Joined Cases T-309/04, T-317/04, T-329/04 and T-336/04 TV 2/Danmark [2008] ECR II-2935, especially paras 88–124.
- 92.
BUPA, para 167. See also the important para 172.
- 93.
See amongst others, Due (1997), p. 137. Also compare with ECJ, Case C-242/95 GT-Link [1997] ECR I-4449, para 50, where the Court of Justice states that: ‘Since Article 90(2) [now Article 106 TFEU] is a provision which permits, in certain circumstances, derogation from the rules of the Treaty, there must be a strict definition of those undertakings which can take advantage of it (ECJ, Case 127/73 BRT v. SABAM and NV Fonior [1974] ECR 313, para 19)’. See also ECJ, Case 127/73 Belgische Radio [1974] ECR 313, para 23; ECJ, Case 41/83 Italian Republic v. Commission [1985] ECR 873, para 30; and ECJ, Case C-179/90 Merci [1991] ECR I-5889, para 27.
- 94.
See for instance Page (1982), p. 28.
- 95.
Papaconstantinou (1988), p. 84.
- 96.
Buendia Sierra (1999), pp. 280–283.
- 97.
See amongst others Commission, Services of general interest in Europe (96/C281/03), OJ C 281/3, Section 26; Commission, Communication from the Commission. Services of general interest in Europe, COM(2000) 580 (2001/C17/04), Section 22; Commission, Green Paper on Services of General Interest, COM(2003) 270, Sections 30–32; and Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions. White Paper on services of general interest, COM(2004) 374, Section 2.
- 98.
Buendia Sierra (1999), pp. 280–283.
- 99.
ECJ, Case C-265/08 Federutility 20 April 2010, ECR I-0000 (n.y.r.), para 29.
- 100.
See for example, Recital 34 of the Services Directive. See also Commission, Commission Staff Working Document. Annexes to the Communication from the Commission on Social services of general interest in the European Union—Socio-economic and legal overview—COM(2006) 177 final, SEC(2006) 516, Section 1.1.1., where it is stated that: ‘It is in this context very important to note that ‘social’ does not necessarily mean “non-economic”. The fact that the functioning is based on solidarity, that certain social objectives are pursued or the non-profit nature of the provider do not rule out that the activity in question is qualified as an economic activity. Some operators may agree to take aspects of solidarity into account in the light other benefits they may obtain from intervening in the sector under consideration. Conversely, non-profit-making entities may compete with profit-making undertakings and may, therefore, constitute undertakings within the meaning of Article 87 of the EC Treaty. As a general rule, Community case law classifies as an undertaking any entity engaged in an economic activity, regardless of its legal status in which it is financed [Footnote omitted]. It should also be noted that an entity carrying out primarily non-economic activities might be engaged in secondary activities of an economic nature. In such cases, classification as an undertaking within the meaning of the competition rules will be confined to the economic activities involved.’
- 101.
BUPA, paras 292–293.
- 102.
The concept is also mentioned other places in the Directive Proposal, see pp. 4, 9, and 23 (recital 12).
- 103.
Hervey and McHale (2004), p. 5. Also, at p. 392, the authors explain that: ‘In the context of health law, this could refer to such matters as the cross-subsidisation that takes place within European national health systems (whether through compulsory insurance or taxation) allowing equality of access to health care and treatment, regardless of an individual patient’s means; the interference with the normal operation of the market in setting prices for pharmaceuticals and other medical products; and the voluntary and unpaid donation of blood or organs.’
- 104.
Mossialos and McKee (2004), p. 34.
- 105.
For a more general account of solidarity in EU law health care law, see for example, Newdick (2006), pp. 1645–1668.
- 106.
For an account, see for example, Ottmann (2008), www.icl-journal.com, p. 40.
- 107.
As explained by Hervey and McHale (2004), p. 125, national public health care systems in the EU may be seen as falling into two main categories: (1) social insurance systems and (2) national health services. About the former category, the authors point out that they are: ‘… based upon the compulsory insurance of categories of persons (now expanded to include all, or virtually all, the population). Insurance premiums are usually income related, and calculated on the basis of total annual expenditure. Administratively speaking, health care schemes are often integrated into the general social security system. The administration of health insurance may be entrusted to public or semi-public bodies, such as sickness funds. Social insurance schemes may be further subdivided into reimbursement schemes, in which patients have to pay for care, and are reimbursed subsequently by their sickness fund; and benefits-in-kind schemes, in which patients receive care essentially free (to them) from health providers, who are then paid directly by the relevant health insurance institutions.’ [all footnotes in the quotation omitted] About the latter category, the authors state that these are: ‘… funded by public taxation, and operate according to benefits-in-kind system. They may be more or less centralised in terms of their administration.’ [all footnotes in the quotation omitted].
- 108.
See, for example, Mau (2007), pp. 138–139, who points out that: ‘… the national welfare state represents a system of compulsory solidarity that does not rest on the voluntary contributions of the citizens, but on tax duties or compulsory social contributions…’.
- 109.
For an account, see, for example, Ottmann (2008), pp. 36–48.
- 110.
Multiple solidarities may be identified, see, for example, Karagiannis (2007), pp. 1–12.
- 111.
Weiler (2002), p. 569.
- 112.
Mau (2007), p. 129.
- 113.
For further details, see Neergaard (2010), pp. 99–140.
- 114.
Karagiannis (2007), pp. 4–5.
- 115.
Ibid., p. 5.
- 116.
Idem.
- 117.
Idem.
- 118.
Idem.
- 119.
Idem.
- 120.
Ibid., p. 6.
- 121.
Idem.
- 122.
Idem.
- 123.
Wilde (2007), pp. 171–172.
- 124.
Ottmann (2008), p. 40.
- 125.
See for further details Neergaard (2010).
- 126.
See http://eur-lex.europa.eu (31 August 2009). The search undertaken was ‘simple’ and limited to judgments from the Court of Justice. The present section 21.5.3 presents only very the very general results of a previous study accomplished; see for further details Neergaard (2010), pp. 99–140.
- 127.
ECJ, Joined Cases 6 and 11–69, Commission v. French Republic [1969] ECR 523.
- 128.
31 August 2009.
- 129.
For the present purposes here understood as not including state aid law.
- 130.
It should be stressed that other judgments than those in which the concept explicitly is mentioned may be of importance to national structures involving solidarity. However, these have largely been left out of the analysis, among others due to limitations of space, and that primary interest is taken in the explicit use of the concept rather than subjectively assuming that solidarity implicitly may be of concern. Also, several of the cases in which the term is mentioned, may be not of the least interest. This may for instance be the case, when the term is used in national legislation being reiterated by the Court of Justice or otherwise being an element in the account of the facts of relevance. Also, this may be the case when the more ‘external’ dimensions of solidarity are involved. In addition, a certain amount of cases concern the ECSC Treaty, which implies that they are also excluded from analysis. Also, cases, in which the reference to solidarity is to a relationship among workers or among trade unions in the context of solidarity actions, are also excluded. This in fact consists of a very large amount of cases.
- 131.
Barnard (2005), p. 159.
- 132.
Pointing in the same direction, it was demonstrated above that the protection of health care in Member States is larger through the concept of SGEI, which is a concept which may be viewed as originating from competition law, than the justifications related to the concept public health and the like, in the area of free movement.
- 133.
See, for example, Szyszczak (2009), p. 192, who states: ‘Finally the essay concludes with the view that EU law is inconsistent in its treatment of healthcare, finding that under the free movement rules there is a greater ease in accepting the economic nature of healthcare and patient mobility rights thus undermining the principle of solidarity upon which healthcare services were originally built. Whereas under the competition rules the Courts are generous towards national healthcare schemes using ideas of cohesion and solidarity to ring fence healthcare activities, even where such activities are explicitly commercial activities, protecting them from the full force of market principles. It is argued that this is the wrong approach and that the EU could play a role in defining an inner core of healthcare activities which are truly solidaristic in a different, EU-level, spatial setting and that there may be good and defensible reasons for protecting these activities from the full force of competition and market rules.’ See also, for example, Hatzopoulos (2009), p. 228, who warns: ‘The fully-fledged application of these same rules to public healthcare, a field based on the (non-market) principle of solidarity, could have undesirable—if not unacceptable—effects. Both the provision of health services and national healthcare and social systems themselves could suffer unintended negative consequences.’
- 134.
Mossialos and McKee (2004), p. 32. See also Chapter 14.
- 135.
See, for example, De Økonomiske Råd (2009), p. 271 et seq.
- 136.
Ibid., p. 271.
- 137.
Ibid., pp. 271–272.
- 138.
Ibid., p. 272.
- 139.
Ross (2007), p. 1069.
- 140.
This has been expressed by Dougan and Spaventa (2005), p. 181, as: ‘… the idea that the European Union now constitutes a multi-level welfare system characterized by a complex combination of local, national and Community policies. This is sometimes expressed in the notion that the Member States are now “semi-sovereign welfare states” whose choices about how to provide for the social well-being of their own citizens are increasingly constrained not only by obvious factors such as the demographic pressures posed by an aging population and the need to compete within the globalizing economy but also by the pervasive influence of the Union—which has not, however, evolved into a “newly sovereign welfare state” determining for itself the conditions under which we pay taxes and receive benefits. As a result, the idea of social solidarity can no longer be treated simply as a national or local monopoly. It also has a vital Community component. [footnotes omitted]’.
- 141.
Szyszczak (2009) at p. 192.
- 142.
30 June 2009, para 393. See http://www.bundesverfassungsgericht.de/entscheidungen/es20090630_2bve000208en.html.
- 143.
Poiares Maduro (2006), pp. 125–141.
- 144.
Pursuant to Hatzopoulos (2005), p. 1600, whom refers to: Commission, European Social Policy—A Way forward for the Union—A White Paper, COM(94) 333. Here it is stated in the ‘Preface’: ‘The objective in the coming period must be to preserve and develop the European social model as we move towards the 21st century, to give to the people of Europe the unique blend of economic well-being, social cohesiveness and high overall quality of life which was achieved in the post-war period.’ See also, for example, Adnett and Hardy (2005).
- 145.
Hatzopoulos (2005), p. 1634.
- 146.
Ibid., pp. 1599–1635.
- 147.
Shaw (2000), p. 3.
- 148.
Jørgensen and Kongshøj Madsen (2007), p. 25, who point out that already in 1985 Jacques Delors introduced a social dimension of the EU.
- 149.
Mossialos and McKee (2004), p. 41.
- 150.
Kleinman (2002), p. 58.
- 151.
Schiek (2007), p. 26. Footnotes have been omitted from the quotation.
- 152.
Case C-341/05 Laval [2007] ECR I-11767, para 105. See also Case C-438/05 Viking [2007] ECR I-10779, para 79.
- 153.
- 154.
It should be noted that the former Article 3(1), litra g) EC, states that the activities of the Community shall include: ‘… a system ensuring that competition in the internal market is not distorted…’ In the Lisbon Treaty this aim could be said to have been ‘moved’ to Protocol 27. See further, for example, Behrens (2008), p. 193; and Semmelmann (2008), pp. 15–47.
- 155.
See Joerges (2004), amongst others at pp. 16–17.
- 156.
Damjanovic and de Witte (2009), p. 55.
- 157.
Poiares Maduro (2006), pp. 125-141.
- 158.
Ibid., p. 125.
- 159.
Idem.
- 160.
Ibid., p. 127.
- 161.
Ibid., p. 125.
- 162.
Idem, p. 125. Pursuant to Maduro this concept refers in this context both to the social model of the European States and that of the European Union itself.
- 163.
Ibid., p. 125.
- 164.
Idem.
- 165.
Idem.
- 166.
Ibid., pp. 125–126.
- 167.
Ibid., p. 126.
- 168.
Ibid., p. 126.
- 169.
See in particular Poiares Maduro, ibid., p. 131: ‘The need to protect the cross-border provision of health services has led the Court to recognize, in several circumstances, the rights of patients to choose the Member State where they wish to be treated. This allows citizens to choose from a broader array of treatments and also to benefit from a faster and better treatment than that which may be available in their country of residence. Some critics have pointed out, however, that this may impose too great a burden on the financial foundations of national health systems. So far, the Court has been careful in this regard but one must recognize that such a system involves a certain degree of cross-subsidization. That such forms of solidarity are inherent in the logic of an internal market which includes a dimension of citizenship appears obvious. The remaining question is how such solidarity should be organized.’
References
Adnett N, Hardy S (2005) The European social model. Modernisation or evolution?. Cheltenham, Edward Elgar
Azoulai L (2008) The Court of Justice and the social market economy: the emergence of an ideal and the conditions for its realization. CML Rev 45
Barnard C (2005) EU citizenship and the principle of solidarity. In: Dougan M et al (eds) Social welfare and EU law. Hart Publishing, Oxford
Barnard C (2007) The substantive law of the EU. The four freedoms, 2nd edn. Oxford University Press, Oxford
Behrens P (2008) Der Wettbewerb im Vertrag von Lissabon [May be translated into: Competition in the Treaty of Lisbon]. Europäische Zeitschrift für Wirtschaftsrecht
Bribosia H (2007) Subsidiarité et repartition des competences entre l’union et ses états membres. In: Amato G, Bribosia H, de Witte B (eds) Genesis and destiny of the European constitution. Bruylant, Brussels
Buendia Sierra JL (1999) Exclusive rights and state monopolies under EC law. Article 86 (formerly Article 90) of the EC Treaty. Oxford University Press, Oxford
Damjanovic D, de Witte B (2009) Welfare integration through EU law: the overall picture in the light of the Lisbon Treaty. In: Neergaard U, Nielsen R, Roseberry L (eds) Integrating welfare functions into EU law—from Rome to Lisbon. DJØF Publishing, Copenhagen
De Búrca G, de Witte B (2002) The delimitation of powers between the EU and its member states. In: Arnull A, Wincott D (eds) Accountability and legitimacy in the European Union. Oxford University Press, Oxford
De Økonomiske Råd (2009) Konjunkturvurdering. Sundhed [May be translated into: Economic survey. Health]. De Økonomiske Råds Sekretariat, Copenhagen
Dougan M, Spaventa E (2005) Wish you weren’t here… new models of social solidarity in the European Union. In: Dougan M, Spaventa E (eds) Social welfare and EU law. Hart Publishing, Oxford
Due O (1997) Hvad mener de dog? (Om læsning af EF-domstolens afgørelser). In: Nielsen R, Fejø J, Lynge Andersen L (eds) Festskrift til Ole Lando. GadJura, Copenhagen
Hatzopoulos V (2005) A (more) social Europe: a political crossroad or a legal one-way? Dialogues between Luxembourg and Lisbon. CML Rev 42
Hatzopoulos V (2009) Services of general interest in healthcare: an exercise in deconstruction? In: Neergaard U, Nielsen R, Roseberry L (eds) Integrating welfare functions into EU law—from Rome to Lisbon. DJØF Publishing, Copenhagen
Hervey TK, McHale JV (2004) Health law and the European Union. Cambridge University Press, Cambridge
Hesselink M (2009) A European legal method? On European private law and scientific method. Eur J Law 15
Jacqueson C (2009) Social dumping i EU—på vej mod en social markedsøkonomi? [May be translated into: Social dumping in the EU—on the road to a social market economy?] no. 5–6
Joerges C (2004) What is left of the European economic constitution?. EUI Working Paper LAW No. 2004/13. European University Institute, Florence, among others
Jørgensen H, Kongshøj Madsen P (2007) Flexicurity and beyond. Finding a new agenda for the European social model. DJØF Publishing, Copenhagen
Karagiannis N (ed) (2007) European solidarity. Liverpool University Press, Liverpool
Kleinman M (2002) A European welfare state? European Union social policy in context. Palgrave, Hampshire
Manow P (2004) “The Good, the Bad, and the Ugly”—Esping Andersen’s regime typology and the religious roots of the Western Welfare State. MPIfG Working Paper 04/3. Max Planck Institute for the Study of Societies, Cologne
Mau S (2007) Forms and prospects of European solidarity. In: Karagiannis N (ed) European solidarity. Liverpool University Press, Liverpool
Mossialos E, McKee M (2004) EU law and the social character of health care. P.I.E. Lang, Bruxelles
Neergaard U (2009a) Services of general economic interest and related concepts: the nature of the beast. In: Krajewski M, van de Gronden J, Neergaard U (eds) The changing legal framework of services of general interest in Europe—between competition and solidarity. T. M.C. Asser Press, The Hague
Neergaard U (2009b) Services of general (economic) interest: What aims and values count? In: Neergaard U, Nielsen R, Roseberry L (eds) Integrating welfare functions into EU law—from Rome to Lisbon. DJØF Publishing, Copenhagen
Neergaard U (2010) In search of the role of solidarity in primary law and the case law of the European Court of Justice. In: Neergaard U, Nielsen R, Roseberry L (eds) The role of the courts in developing a European social model—theoretical and methodological perspectives. DJØF Publishing, Copenhagen
Neergaard U et al (eds) (2010) Blurring boundaries: from the Danish welfare state to the European social model. Copenhagen Business School Working Paper Series or Social Science Research Network, Copenhagen http://ssrn.com/abstract=1618758
Newdick C (2006) Citizenship, free movement and health care: cementing individual right by corroding social solidarity. CML Rev 43
Østergaard U (2010) Martin Luther og dansk politisk kultur. Nationalkirke, luthersk reformation og dansk nationalisme [May be translated into: Martin Luther and Danish political culture. The national church, reformation and Danish nationalism] Kritik
Ottmann J (2008) The concept of solidarity in national and European Law: the welfare state and the European social model www.icl-journal.com
Page AC (1982) Member states, public undertakings and Article 90’. ELRev 7
Papaconstantinou H (1988) Free trade and competition in the EEC. Law, policy, and practice. Routledge, London
Poiares Maduro M (2006) European constitutionalism and three models of social Europe. In: Hesselink MW (ed) The politics of a European civil code. Kluwer Law International, The Hague
Ross M (2007) Promoting solidarity: from public services to a European model of competition. CML Rev 44
Schiek D (2007) The European social model and the services directive. In: Neergaard U, Nielsen R, Roseberry L (eds) The services directive—consequences for the welfare state and the European social model. DJØF Publishing, Copenhagen
Semmelmann C (2008) The future role of the non-competition goals in their interpretation of Article 81 EC. Global Antitrust Rev 1
Shaw J (2000) Introduction. In: Shaw J (ed) Social law and policy in an evolving European Union. Hart Publishing, Oxford
Szyszczak E (2009) Modernising healthcare: pilgrimage for the Holy Grail? In: Krajewski M, van de Gronden J, Neergaard U (eds) The changing legal framework of services of general interest in Europe—between competition and solidarity. T.M.C. Asser Press, The Hague
Van de Gronden J (2008) Cross-border health care in the EU and the organization of the national health care systems of the member states: the dynamics resulting from the European Court of Justice’s Decisions on free movement and competition law. Wisconsin Int Law J 26
Weatherill S (2002) Pre-emption, harmonisation and the distribution of competence to regulate the internal market. In: Barnard C, Scott J (eds) The law of the single European Market. Unpacking the Premises. Hart Publishing, Oxford
Weiler J (2002) A constitution for Europe? Some hard choices. J Common Market Stud 40
Wilde L (2007) The concept of solidarity: emerging from the theoretical shadows? Br J Polit Int Relations 9
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Neergaard, U. (2011). EU Health Care Law in a Constitutional Light: Distribution of Competences, Notions of ‘Solidarity’, and ‘Social Europe’. In: van de Gronden, J., Szyszczak, E., Neergaard, U., Krajewski, M. (eds) Health Care and EU Law. Legal Issues of Services of General Interest. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-90-6704-728-9_2
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