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As working and travelling abroad becomes more and more common within the European Union a recent case in the European Court of Justice has highlighted the need for a clear set of rules on the movement of sick people.
The case concerns two Dutch people who were treated in foreign countries within the EU. Mrs. Geraets-Smits was suffering from Parkinson's disease and went to a specialised German clinic to be cared for. Mr. Peerbooms fell into a coma following a road traffic accident. He received special intensive therapy in an Austrian clinic, which improved his condition. Mr Peerbooms did not meet the conditions for admission to two establishments in the Netherlands which offered treatment on an experimental basis using the same medical technique (such treatment being available in the Netherlands only to persons aged under 25). In both instances the patients attempted to recoup the costs of their treatment from the Dutch Health Insurance Office but were refused on the grounds that satisfactory and adequate care was available in the Netherlands and that the treatment received in Austria and Germany afforded no additional advantage. The social security legislation in the Netherlands says that patients may not receive medical care either in the country or abroad, provided by establishments not having an agreement with the sickness insurance fund, until prior authorisation has been obtained.
The Advocate General, who gives initial opinions on cases brought before the ECJ, found against the patients and in favour of the health authorities. The reasons he gave were firstly that the insurance fund did not constitute a service and was therefore outside the EU treaty principle of freedom to provide services, but also that rules on prior authorisation 'enable health-care expenditure to be controlled and enable each State to adjust its health priorities in accordance with the resources available to it'. Following this opinion the European Trade Union Confederation (ETUC) stated its view. Beatrice Hertogs, confederal secretary said, 'Although I share the advocate-general's opinion in these two specific cases, I believe it would be desirable, rather than to wait for the judgements of the ECJ, to establish clear European legislation in this area'. It seems that the ETUC wants to balance the free movement of sick people against the need to maintain national health services in sound financial positions. But it believes that, with certain conditions, health care should be internationalised starting with agreements between countries in border areas 'to improve access to health care for the populations of those regions and guarantee the rational use of infrastructures and available facilities'.
The Court will now deliberate further on the case before final judgement is delivered.
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For the first time the ECJ has imposed a daily fine on a Member State. In 1987 the European Commission received a complaint about uncontrolled waste disposal in the river Kouroupitos, in the prefecture of Chania (Crete). The waste came from military bases, hospitals and industry in the area. In 1992 the Court of Justice held in a first judgment that Greece had failed to take the necessary measures for toxic and dangerous disposal as required by two Community directives from 1981. Under the Maastricht treaty the Commission can bring a second case if no notice is taken of the first one. Therefore, in 1997, Greece having failed to comply, the Commission applied to the Court of Justice for an order requiring Greece to pay €24,600 per day from delivery of the new judgment. The Court held that a periodic penalty payment was the most appropriate means of ensuring that Community law was applied uniformly and effectively and of inducing Greece to comply with its obligations. In view of the particularly serious nature of the breaches of obligations, and of the duration of the infringement the Court ordered Greece to pay €20,000 for each day of delay from 4 July 2000. It seems that the court's decision has done the trick as, in late August, a Greek court in Chania accepted an application to build a landfill and recycling plant.
In a case referred from Sweden, the ECJ has set out its attitude to positive discrimination in the field of job appointments. In 1996 the University of Göteborg announced a vacancy for the chair of Professor of Hydrospheric Sciences. The vacancy notice indicated that the appointment should contribute to promotion of equality of the sexes in professional life and that positive discrimination might be applied. In accordance with Swedish legislation, the selection board ranked the candidates, taking into account both their scientific merits and the need to appoint a female where the differences in qualifications were not so great as to make the selection subjective, and recommended a Ms. Destouni for the job. However when she withdrew her application the Rector of the university appointed the third on the list, Ms. Fogelqvist, ignoring the male candidate, Mr. Anderson, who was second. The Court concluded that positive discrimination was lawful only when 'candidatures are the subject of an objective assessment which takes account of the specific personal situations of all candidates'. This did not happen under Swedish legislation which 'automatically accorded priority to candidates belonging to the under-represented sex who were adequately qualified' and 'candidatures were not subjected to an objective assessment taking account of the specific personal situations of all the candidates'.
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