Abstract
This chapter addresses the protection against discriminatory practices when accessing healthcare services in the European Union (EU). The analysis focuses on the existing normative framework and the relevant case law of the European Court of Justice with a view to single out the current legal criticalities and put forward some proposals to guarantee more equality in the future.
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Notes
- 1.
The document, published by the Active Citizenship Network (ACN), is accessible at http://www.activecitizenship.net/primo-piano/170-9th-european-patients-rights-day.html (accessed 31 December 2016). ACN is a network of European civic organizations involved in the promotion of policymaking at the EU level.
- 2.
The European Health Insurance Card (EHIC) is a free card that gives access to medically necessary, state-provided (i.e., not private) healthcare during a temporary stay in any of the 28 EU countries, as well as Iceland, Lichtenstein, Norway, and Switzerland, under the same conditions and at the same cost as people insured in that country. The EHIC is issued by the national health insurance provider in the country of residence and does not cover costs related to planned medical treatment. According to a survey conducted by the European Commission in 2014, nearly 206 million Europeans (around 40% of the total insured population) have the EHIC. See further European Commission, ‘European Health Insurance Card : Over 200 Million Europeans Already Carry One’, http://ec.europa.eu/social/main.jsp?langId=en&catId=559&newsId=2281&furtherNews=yes (accessed 31 December 2016).
- 3.
For a detailed analysis of the main reforms introduced by the Lisbon Treaty, the reader is generally referred to and Hervey and Vanhercke (2010), p. 127.
- 4.
OJ 2006 C 146/1. See also European Commission, Directorate-General for Employment, Social Policy and Equal Opportunities (2009), ‘Joint Report on Social Protection and Social Inclusion’, ec.europa.eu/social/BlobServlet?docId=3267&langId=en (accessed 31 December 2016).
- 5.
COM(2007) 630 final.
- 6.
OJ 2011 L 88/45.
- 7.
In 2009, Commissioner Androulla Vassiliou underlined the 18-year gap in ‘healthy life’ years between the most advanced and least advanced Member States, with cerebrovascular diseases killing six times more women in Romania than in France, and pneumonia killing nine times more men in Slovakia than in Greece. The differences in the quality of medical centres, the training of staff, and the economic resources of citizens all contribute to this state of affairs. Hence, the commitment of the Commission to reducing the gap via funding programmes (e.g., structural funds for investment in health, the research programme, and the health programme). Cf. European Policy Centre, ‘Building a Healthy Europe: Challenges and Opportunities’, accessible at http://epc.eu/pub_details.php?cat_id=6&pub_id=980 (accessed 31 December 2016).
- 8.
The Court of Justice has recently handed down two judgments concerning the possibility for Member States to expel third-country nationals suffering from a serious illness. In Abdida (ECJ, Case C-562/13 Centre public d’action sociale d’Ottignies-Louvain-La-Neuve v Moussa Abdida EU:C:2014:2453) the Luxembourg judges held that if appropriate treatment is not available in the country of destination the removal could be contrary to the Charter and, if so, the competent authorities should suspend the pertinent measures pursuant to Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98). In M’Bodj (ECJ, Case C-542/13 Mohamed M’Bodj v État belge EU:C:2014:2452), instead, the Court ruled that the removal of a seriously ill person could in exceptional circumstances amount to a breach of Article 3 ECHR, but considered that the Qualification Directive (2004/83/EC) does not require a Member State to grant the social welfare and healthcare benefits to a third-country national who has been granted leave to reside in the territory of that Member State under national legislation.
- 9.
COM(2014) 215 final.
- 10.
Dubois and Molinuevo (2013), p. 23.
- 11.
CSDH (2008).
- 12.
Cf. OSCE/ ODIHR (2013) and Council of the European Union, ‘Council Conclusions on Equity and Health in all Policies: Solidarity in Health’, 8 June 2010, www.consilium.europa.eu/uedocs/cms_Data/docs/pressdata/en/lsa/114994.pdf (accessed 31 December 2016).
- 13.
National systems can roughly be divided into two broad categories: on the one side, there is the Bismarkian model (e.g., Austria, France, Germany, and the Benelux countries), relying on private (compulsory) insurance, and thus on the reimbursement of costs; on the other, there is the Beveridgean model (e.g., Greece, Italy, Ireland, Denmark, Finland, Spain, Sweden, and the UK), based on national health coverage financed by general taxation and mainly operating by means of benefits in kind. See van de Gronden (2008) and Busse et al. (2011).
- 14.
European Commission, Directorate-General for Employment, Social Policy and Equal Opportunities, ‘Joint Report on Social Protection and Social Inclusion 2010’, ec.europa.eu/social/main.jsp?catId=738&langId=en&pubId=549&type=2&furtherPubs=yes (accessed 31 December 2016), and European Commission, Directorate-General for Health and Consumers, ‘Health Inequalities in the EU Final Report of a Consortium. Consortium lead: Sir Michael Marmot’, http://ec.europa.eu/health/social_determinants/docs/healthinequalitiesineu_2013_en.pdf (accessed 31 December 2016). See also Mackenbach et al. (2008).
- 15.
E.g., by limiting coverage for dental and ophthalmic services and access to specialized services, such as obstetric and mental health services. Moreover, it should be noted that in countries with a politically present Catholic Church (e.g., Ireland, Poland, and Italy) certain treatments (e.g., fertility treatments and abortion) are prohibited or limited on moral and bioethical grounds.
- 16.
Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the Member States (OJ 2004 L 158/77).
- 17.
Regulation No. 883/2004/EC on the coordination of social security systems (OJ 2004 L 166/1). In 2013, the Daily Mail reported that because of the severe financial crisis in Spain, British holidaymakers were asked to pay for treatment despite having an EHIC card. See further http://www.dailymail.co.uk/news/article-2333428/Spanish-government-facing-EU-punishment-countrys-hospitals-refused-accept-European-healthcare-cards-used-millions-UK-tourists.html#ixzz3qd9Xfgwd (accessed 31 December 2016).
- 18.
International Covenant on Economic, Social and Cultural Rights of 16 December 1966, Article 12. See in particular Committee on Economic, Social and Cultural Rights (CESCR), General Comment No. 3: The Nature of States Parties Obligations (Art. 2, para 1, of the Covenant), 14 December 1990, http://www.refworld.org/docid/4538838e10.html (accessed 31 December 2016); CESCR, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the Covenant), 11 August 2000, http://www.refworld.org/docid/4538838d0.html (accessed 31 December 2016); and CESCR, General Comment No. 19: The Right to Social Security (Art. 9 of the Covenant), 4 February 2008, http://www.refworld.org/docid/47b17b5b39c.html (accessed 31 December 2016); European Social Charter, Article 11; Constitution of the World Health Organization of 22 May 1973; Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine: Convention on Human Rights and Biomedicine of 4 April 1997, Article 3.
- 19.
Above and beyond Regulation 883/04 (supra n. 17), and Directive 2011/24 (supra n. 6), a plethora of instruments are in place to ensure a minimum core of benefits and healthcare protection for third-country nationals. See Directive 2003/109/EC concerning the status of third-country nationals who are long-term residents (OJ 2004 L 16/44); Directive 2013/33/EU laying down standards for the reception of applicants for international protection (OJ 2013 L 180/96), Articles 17(3)(4), 19, 20(5); Directive 2001/55/EC on minimum standards for giving temporary protection in the event of a mass influx of displaced persons and on measures promoting a balance of efforts between Member States in receiving such persons and bearing the consequences thereof (OJ 2001 L 212/12), Article 13(2)(4); Directive 2008/115/EC on common standards and procedures in Member States for returning illegally staying third-country nationals (OJ 2008 L 348/98), Articles 14(1) and 16(3); and Directive 2011/95/EU on standards for the qualification of third-country nationals or stateless persons as beneficiaries of International protection, for a uniform status for refugees or for persons eligible for subsidiary protection, and for the content of the protection granted (OJ 2011 L 337/9). See also EU Fundamental Rights Agency (2011, 2013a).
- 20.
EU Fundamental Rights Agency (2013b), p. 8.
- 21.
Ibid., 13.
- 22.
According to EU Fundamental Rights Agency 2011, access to healthcare services by irregular migrants varies substantially and is often limited to emergency care. Above and beyond the fundamental rights protection issue, recent studies indicate that denying irregular migrants access to regular preventive healthcare results in higher costs for healthcare systems and is thus counterproductive. EU Fundamental Rights Agency 2015. In response to the migrant crisis , on 12 January 2016 the Commission announced an award of EUR 5.6 million to support the health authorities of 11 countries in providing ‘adequate and accessible’ health services to newly arrived migrants, with a specific focus on children and pregnant women.
- 23.
Peucker (2010), p. 15.
- 24.
Of course, unregulated civil status (lack of personal documents, birth certificates, and insurance), cultural norms and lack of financial means to pay up front make it difficult to benefit from prenatal and birth assistance as well as screening programmes.
- 25.
Moreover, disabled and elderly persons have mobility issues, which are difficult to overcome, especially in the presence of uneven geographical coverage and limited (and costly) public transport.
- 26.
See ECtHR , V.C. v Slovakia, No. 18968/07, Judgment of 8 November 2011, and ECtHR, N.B. v Slovakia, No. 29518/10, Judgment of 12 June 2012.
- 27.
EU Fundamental Rights Agency (2013b), p. 75.
- 28.
Ibid., 45.
- 29.
- 30.
Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (OJ 2000 L 180/22).
- 31.
Directive 2004/113/EC implementing the principle of equal treatment between men and women in the access to and supply of goods and services (OJ 2004 L 373/37).
- 32.
Article 3(1)(e) of the Race Equality Directive and Article 3(1) and Recital No. 12 of the Goods and Services Directive.
- 33.
Article 3 of the Race Equality Directive, Article 3 of the Goods and Services Directive, and Article 3 of Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation (OJ 2000 L 303/16).
- 34.
- 35.
For a more detailed analysis of the personal and material scope of application of Regulation 883/04, supra n. 17, and Directive 2011/24/EU, supra n. 6, the reader is referred to Di Federico (2014), p. 184.
- 36.
This, by the way, appears to imply that EU law ensures a higher standard than the one affirmed in the context of the ECHR. See ECtHR , V.C. v Slovakia, No. 18968/07, supra n. 26.
- 37.
Sex discrimination in statutory social security schemes instead falls within the scope of Directive 79/7/EEC on the progressive implementation of the principle of equal treatment for men and women in matters of social security (OJ 1979 L 6/24). In a recent judgment, the ECJ recognized that differentiated benefits on the basis of gender-specific actuarial data are inadmissible in statutory social security pensions (ECJ, Case C-318/13 Proceedings brought by X EU:C:2014:2133).
- 38.
Nonetheless, it appears that a large majority of equality bodies has reported that the notion of service is often limited insofar as it only covers services provided for remuneration, which ultimately excludes publicly funded services and by direct transfer from the patient. European Network of Equality Bodies (2014), p. 3.
- 39.
With specific reference to healthcare services, it should be noted that pursuant to well-established case law, the service must not necessarily be paid by those for whom it is performed. See to that effect, ECJ, Case C-157/99 Smits and Peerbooms EU:C:2001:404, para 57.
- 40.
A considerable number of EU Member States have adopted legislation that reflects closely the definition of direct and indirect discrimination found within the Equality Directives. See, further, Chopin and Germaine-Sahl (2013), pp. 44–47.
- 41.
See by analogy ECJ, Case 177/88 Dekker v VJV-Centrum EU:C:1990:383 (unintentional direct discrimination), and ECJ, Case 179/84 Bilka-Kaufhaus GmbH v Weber von Hartz EU:C:1986:204 (unintentional indirect discrimination), both in the field of employment.
- 42.
See Article 2(2) of the Race Equality Directive and Article 2(a)(b) of the Goods and Services Directive. See also, in relation to the Race Directive (and with particular reference to direct discrimination), ECJ, Case C-54/07 Centrum v Firma Feryn NV EU:C:2008:397, paras 24 and 25.
- 43.
See Article 2(3) of the Race Equality Directive and Article 2(c) of the Goods and Services Directive.
- 44.
See Articles 2(4) and 9 of the Race Equality Directive and Articles 4(4) and 10 of the Goods and Services Directive.
- 45.
ECJ, Case C-303/06 Coleman v Attridge Law and Steve Law EU:C:2008:415. On this case law see Chap. 5 by Benoît-Rohmer, in this volume.
- 46.
See also ECJ, Case C-303/06 Coleman EU:C:2008:61, Opinion of AG Maduro, paras 12, 14, and 23; and Waddington (2009), p. 679.
- 47.
See Article 6(2) of the Race Equality Directive and Article 7(2) of the Goods and Services Directive.
- 48.
Recital No. 14 of the Race Equality Directive.
- 49.
See Article 4(5) of the Goods and Services Directive and Article 4 of the Race Equality Directive.
- 50.
Article 4 of the Race Equality Directive; emphasis added.
- 51.
See Article 8(1) of the Race Equality Directive and Article 9(1) of the Goods and Services Directive. On the possibility to equate the regime applicable to the burden of proof in cases of sex discrimination and race discrimination, see also ECJ, Case C-54/07 Centrum v Firma Feryn EU:C:2008:155, Opinion of AG Maduro, para 22. According to the ECJ, prima facie evidence can be inferred, inter alia, from lack of transparency of the applicable rules (ECJ, Case C-109/88 Handels v Danfoss EU:C:1989:383) and from (significant) statistics (ECJ, Case C-381/99 Brunnhofer v Bank der österreichischen Postsparkasse AG EU:C:2001:358).
- 52.
See Article 9 of the Race Equality Directive and Article 10 of the Goods and Services Directive.
- 53.
See Article 7(1) of the Race Equality Directive and Article 8(1) of the Goods and Services Directive.
- 54.
See Articles 7(2) and 15 of the Race Equality Directive and Articles 8(2) and 14 of the Goods and Services Directive.
- 55.
See Article 13 of the Race Equality Directive and Article 12 of the Goods and Services Directive. In this respect, it should be remembered that in its communication on the EU Justice Agenda for 2020, the Commission highlighted the key role that equality bodies can play in ensuring effective remedies for citizens. Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘EU Justice Agenda for 2020: Strengthening Trust, Mobility and Growth within the Union’, COM(2014) 144 final.
- 56.
See Article 17(1) of the Race Equality Directive and Article 16(1) of the Goods and Services Directive.
- 57.
Moreover, in assessing the respect for the principle of non-discrimination in the Member States, the Commission can rely on the European Network of Legal Experts in the Non-discrimination Field. The various specific thematic country reports elaborated within the Network can be found at http://www.non-discrimination.net/home/country/ (accessed 31 December 2016).
- 58.
See Article 13(2) of the Race Equality Directive and Article 12(2)(b)(c) of the Goods and Services Directive. In view of a growing number of concerns in that respect, the Commission is currently scrutinizing more widely the Member States’ compliance with the requirements concerning national equality bodies. This involves checking that each equality body has the required mandate and powers, but also that it actually effectively performs all the tasks set out in the Directive 2000/43/EC. See European Commission, ‘Joint Report on the application of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘Racial Equality Directive’) and of Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation (‘Employment Equality Directive’)’, COM(2014) 2 final, 12. Moreover, as suggested by the European Network of Equality Bodies (Equinet) , a Network bringing together 45 organizations from 33 European countries, standards are needed to establish and guarantee independence and effectiveness: cf. European Network on Equality Bodies (2013). More recently, the European Commission has announced that it will ‘continue its work to ensure that equality bodies can actually and fully play this role, notably through the monitoring and enforcement of the applicable rules. It will also explore ways of clarifying the requirements concerning equality bodies under the Directive, particularly the key concepts of independence and effectiveness’ (European Commission, ‘Report on the Application of Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of goods and Services’, COM(2015) 190 final, 12). See also, in this respect, Chap. 4 by Muir and de Witte in this volume.
- 59.
See further, European Commission, ‘Developing Anti-discrimination Law in Europe’, http://ec.europa.eu/justice/discrimination/files/comparative_analysis_2014.pdf (accessed 31 December 2016), 70.
- 60.
This notwithstanding the fact that, by and large, EU Member State legislation protects from discrimination beyond the workplace, including healthcare, on the grounds of age, disability, religion/belief, or sexual orientation. Cf. McColgan (2013), pp. 59 and 80, and, more generally, Migration Policy Group, ‘Country Reports on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC’, http://www.migpolgroup.com/portfolio/country-reports-measures-combat-discrimination-2012/ (accessed 31 December 2016).
- 61.
Nonetheless, there have been cases in which the interaction of gender and age was appreciable. See, for instance, ECJ, Case 149/77 Defrenne v Sabena EU:C:1978:130; ECJ, Case 152/84 Marshall v Southampton and South-West Hampshire Area Health Authority EU:C:1986:84; and, more recently, ECJ, Case C-227/04 P Lindorfer v Council of the European Union EU:C:2007:490. By contrast, there is abundant case law on discrimination based on sex and age, especially in the workplace. See, generally, Koldinská (2011), Schiek (2011), Pech (2012), Schlachter (2011), Dewhurst (2013), and Möschel (2013).
- 62.
In this regard, it should be remembered that the Committee of Ministers of the Council of Europe has incorporated multiple-discrimination in its Recommendation CM/Rec(2010)5 to Member States on measures to combat discrimination on grounds of sexual orientation or gender identity. Most notably, pursuant to para 46 of the Recommendation, Member States are encouraged to ‘take measures to ensure that legal provisions in national law prohibiting or preventing discrimination also protect against discrimination on multiple grounds, including on grounds of sexual orientation or gender identity’.
- 63.
European Commission, ‘Developing Anti-discrimination Law in Europe’, supra n. 59, 43.
- 64.
See Article 2(4) of the Race Equality Directive and Article 4(4) of the Goods and Services Directive.
- 65.
At the national level, a number of Member States foresee in their antidiscrimination law specific rules on instructions to discriminate. See further European Commission, ‘Combating Sexual Orientation Discrimination in the European Union’, http://ec.europa.eu/justice/discrimination/files/sexual_orientation_en.pdf (accessed 31 December 2016), 59.
- 66.
European Commission, Joint Report, supra n. 58, 12.
- 67.
European Network of Equality Bodies (2015), p. 1.
- 68.
For instance, nationality, language, and political opinion. See European Commission, ‘Joint Report’, supra n. 58, 12 and European Commission, ‘Developing Anti-discrimination Law in Europe’, supra n. 59, 11.
- 69.
European Commission, ‘Joint Report’, supra n. 58, 12. See also Masselot (2007), p. 167.
- 70.
See also European Commission, ‘Developing Anti-discrimination Law in Europe’, supra n. 58, 89; European Network of Equality Bodies (2014), p. 29; and European Commission, ‘Report on the Application of Council Directive 2004/113/EC Implementing the Principle of Equal Treatment between Men and Women in the Access to and Supply of Goods and Services’, COM(2015) 190 final, 6.
- 71.
See Article 13(2)(a) of the Race Equality Directive and Article 12(2)(a) of the Goods and Services Directive.
- 72.
See Article 5 of the Race Equality Directive and Article 6 of the Goods and Services Directive.
- 73.
In this sense, Bulgaria seems to have implemented a quite effective programme of positive actions to promote the Roma’s health conditions and awareness of the possibilities offered by the domestic healthcare system. See National Roma Integration Strategy of the Republic of Bulgaria (2012–2020)—Draft, http://ec.europa.eu/justice/discrimination/files/roma_bulgaria_strategy_en.pdf (accessed 31 December 2016) and Health Strategy for Disadvantaged Persons Belonging to Ethnic Minorities (2011). For further details on the implementation of the Bulgarian measures, see Dimitrov (2014).
- 74.
At present, only Portuguese and Austrian anti-discrimination law seems to provide for higher compensation when multiple discrimination occurs. Cf. European Commission, ‘Developing Anti-discrimination Law in Europe’, supra n. 59, 43.
- 75.
European Commission, ‘Proposal for a Council Directive on Implementing the Principle of Equal Treatment between Persons Irrespective of Religion or Belief, Disability, Age or Sexual Orientation’, COM(2008) 426 final.
- 76.
The expression ‘lying dormant’ is borrowed from Coleman and Kiska (2012), p. 113.
- 77.
Eurostat, ‘Overweight and Obesity—BMI statistics’, http://ec.europa.eu/eurostat/statistics-explained/index.php/Overweight_and_obesity_-_BMI_statistics (accessed 31 December 2016).
- 78.
ECJ, Case C-354/13 Fag og Arbejde v Kommunernes Landsforening EU:C:2014:2463, para 64. The Court also clarified that the concept of ‘disability’ does not depend on the personal behaviour of the affected individual or how much he/she contributed to the onset of his/her condition (ibid., para 56). For a previous, more restrictive reading of the concept of disability, see ECJ, Case C-13/05 Chacón Navas v Eurest Colectividades SA EU:C:2006:456, paras 43 and 44. See also Chap. 5 by Benoît-Rohmer and Chap. 6 by Zaccaroni, in this volume.
- 79.
In this regard, it should be noted that the Equal Treatment Proposal explicitly refers to Directive 2000/78/EC, albeit only in relation to the principles of reasonable accommodation and disproportionate burden. See Recital No. 19 and Article 2(5) of the Proposal.
- 80.
This question has been put forward by Ellis et al. (2012), p. 167 (emphasis added), and still awaits an answer.
- 81.
P6_TA (2009) 0211 Amendment 36. The provisions of the Convention are an integral part of the European Union legal order, and secondary law, such as the equality directives, should be interpreted in a manner consistent with that Convention (see, in particular, ECJ, Case C-363/12 Z. v A Government Department and the Board of Management of a Community School EU:C:2014:159, para 75).
- 82.
P6_TA (2009) 0211 Amendment 37. Moreover, according to the European Parliament, direct discrimination should be taken to occur ‘where one person, or persons who are or who are assumed to be associated with such a person, is treated less favorably than another is, has been or would be treated in a comparable situation, on one or more of the [mentioned] grounds’ (Amendment 38).
- 83.
- 84.
- 85.
ECJ, Case 23/83 W.G.M. Liefting and Others EU:C:1984:282.
- 86.
The contributions paid by the public authorities qualified as ‘pay’ within the meaning of Article 157 TFEU because they were included in the calculation of the gross salary payable to civil servants (ibid., para 13).
- 87.
ECJ, Case C-177/88 E.J.P. Dekker v Stichting Vormingscentrum voor Jong Volwassenen Plus EU:C:1990:383.
- 88.
Ibid., para 12.
- 89.
ECJ, Case C-104/09 Pedro Manuel Roca Álvarez v Sesa Start España EU:C:2010:561.
- 90.
Ibid., paras 18–39.
- 91.
At the national level (like in Ireland, Spain, Poland, and France), the elements necessary for determining the comparator are in some cases absent or erroneous. Chopin and Germaine-Sahl (2013), p. 44.
- 92.
ECJ, Case C-144/04 Werner Mangold v Rüdiger Helm EU:C:2005:709. For a critical assessment of the judgments handed down after Mangold, see Pech (2012).
- 93.
Although it will be conceded that the Court has recently affirmed that whilst Directive 2000/78/EC gives specific expression to the principle of non-discrimination on grounds of age , enshrined in Article 21 of the Charter, cases falling within the scope of that Directive must be examined by reference to the Directive alone. ECJ, Case C-530/13 Leopold Schmitzer v Bundesministerin für Inneres EU:C:2014:2359, paras 22–24.
- 94.
ECJ, Case C-555/07 Seda Kücükdeveci v Swedex GmbH & Co. KG. EU:C:2010:21.
- 95.
On the relation between general principles of law, secondary law, and Charter provisions, see further Amalfitano (2016).
- 96.
ECJ, Case C-176/12 Association de médiation sociale v Union locale des syndicats CGT EU:C:2014:2.
- 97.
Ibid., paras 47 and 48.
- 98.
Ibid., para 51; emphasis added.
- 99.
Bell (2009), p. 13.
- 100.
See ECJ, Case C-147/08 Jürgen Römer v Freie und Hansestadt Hamburg EU:C:2011:286; ECJ, Case C-267/06 Tadao Maruko v Versorgungsanstalt der deutschen Bühnenand EU:C:2008:179; and ECJ, Case C-267/12 Frédéric Hay v Crédit agricole mutuel de Charente-Maritime et des Deux-Sèvres EU:C:2013:823.
- 101.
In Sweden, for instance, a woman in a same-sex relationship contacted her local medical centre to set up an appointment for a medical assessment concerning in vitro fertilization and was referred to a specialist unit, while heterosexual couples were treated at their local medical centre. See, further, European Commission, ‘Combating Sexual Orientation Discrimination in the European Union’, supra n. 65, 72.
- 102.
See Article 18 of the International Covenant on Civil and Political Rights of 16 December 1966 and Article 9 of the European Convention on Human Rights.
- 103.
ECtHR , R.R. v Poland, No. 27617/04, Judgment of 26 May 2011, para 160.
- 104.
ECtHR , P. and S. v Poland, No. 57375/08 Judgment of 30 October 2012, para 106. With reference to the European context, see also European Committee of Social Rights, European Network (IPPF EN) v Italy, Complaint No. 87/2012, Decision on the merits, 10 March 2014.
- 105.
Human Rights Committee, ‘General Comment No. 28, Article 3: Equality of Rights between Men and Women’, UN Doc. No. CCPR/C/21/Rev.1/Add.10 (2000), para 21.
- 106.
Interim Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, UN Doc. No. A/66/254, 3 August 2011, para 65(m).
- 107.
ECJ, Case C-617/10 Åkerberg Fransson EU:C:2013:105, para 19.
- 108.
- 109.
See European Commission, ‘Investing in Health’, Brussels, 20 February 2013, SWD(2013) 43 final, http://ec.europa.eu/health/strategy/docs/swd_investing_in_health.pdf (accessed 31 December 2016).
- 110.
In 2013, approximately 123 million European citizens (around 24.5% of the EU population) in the EU-28 were at risk of poverty or social exclusion. Eurostat, People at Risk of Poverty or Social Exclusion, 2015, http://ec.europa.eu/eurostat/statistics-explained/index.php/People_at_risk_of_poverty_or_social_exclusion#Main_statistical_findings (accessed 31 December 2016). The reduction of the number of persons at risk of poverty or social exclusion in the EU is one of the key targets of the Europe 2020 strategy. Within the European Union, these differences will inevitably influence patients’ choices and may discourage ordinary citizens from traveling abroad to receive medical services, thus hampering the full enjoyment of their economic rights.
- 111.
In this regard, the European Committee of Social Rights has recently acknowledged that ‘[t]he right to protection of health guaranteed in Article 11 of the [European Social] Charter thus complements the protection afforded to the principle of human dignity by Articles 2 and 3 of the European Convention on Human Rights as interpreted by the European Court of Human Rights . As part of the positive obligations that arise by virtue of this fundamental right, States must provide appropriate and timely health care on a non-discriminatory basis, including services relating to sexual and reproductive health’ (European Committee of Social Rights, FIDH v France, Complaint No. 14/2003, Decision on the merits, 8 September 2004, para 31).
- 112.
European Commission, ‘Non-discrimination and Equal Opportunities: A Renewed Commitment’, COM(2008) 420 final, 5.
- 113.
Juncker (2014), p. 9.
- 114.
For a comprehensive overview of the activities and publications of the Agency, the reader is referred to the official website: http://fra.europa.eu/en (accessed 31 December 2016).
- 115.
Sienkiewicz (2010), p. 20.
- 116.
E.g., reproductive, mental, antiretroviral, dental, ophthalmic, ear, and rehabilitation healthcare.
- 117.
Cited supra n. 9.
- 118.
See generally Tobler (2013).
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Di Federico, G. (2017). Access to Healthcare in the European Union: Are EU Patients (Effectively) Protected Against Discriminatory Practices?. In: Rossi, L., Casolari, F. (eds) The Principle of Equality in EU Law. Springer, Cham. https://doi.org/10.1007/978-3-319-66137-7_8
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