Abstract
This chapter sets the scene for the subsequent analysis of patients’ and students’ mobility in publicly financed systems of healthcare and education. Similarities and differences in the relevant legal framework are presented as well as the significance of the move from the economic to the non (or less)-economic sphere. Furthermore, organisational choices are discussed and explained. In particular, the organisational choices made in regard of the relationship between the right to free movement of services and the right to free movement of persons (the subject matter of Part II) is justified based on the fundamental importance of the EEA perspective in the analysis.
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- 1.
Similarly, the EEA Agreement ensures the right of mutual recognition of professional qualifications, including in the field of health care and education, recognised across the EEA, see i.a. Case E-1/11 Dr. A on the refusal of the Norwegian Registration Authority to grant a medical doctor trained in Bulgaria a license to practice as a medical doctor in Norway.
- 2.
Such as the value of culture enshrined in Article 128 TFEU, see Part III and new aims and values commented upon in the introduction Sect. 1.5.
- 3.
Charter of Fundamental Rights of the European Union (2000/C 364/01), made legally binding through the Lisbon Treaty.
- 4.
Joined Cases C-159/91 and 160/91 Poucet and Pistre v AGF and Cancava [1993] ECR I-637, paragraph 6, Case C-70/95 Sodemare v Regione Lombardia [1997] ECR I-3395, paragraph 27. In a more recent Court decision the lack of EU competence in the health sector was an important argument in favour of not finding any violation of the state aid prohibition in the Irish financing system for a SGEI in the field of health insurance, case T-289/03 BUPA v Commission [2008] ECR II-81, see Part III.
- 5.
Case C-76/05 Schwarz [2007] ECR I-6849, paragraph 50.
- 6.
Case 263/86 Humbel [1988] ECR I-5365, paragraph 18.
- 7.
Case C-109/92 Wirth [1993] ECR I-6447.
- 8.
Case C-76/05 Schwarz [2007] ECR I-6849, see in particular paragraph 39, see further analysis of the CJEU case law in Sect. 4.2.2 below.
- 9.
See for an analysis of this case in Part III.
- 10.
Case C-70/95 Sodemar [1997] ECR I-3395, paragraph 32.
- 11.
Opinion of the Advocate General Ruiz-Jarabo Colomer in case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-5473.
- 12.
- 13.
This difference between EU and EEA law stems from the fact that the EEA Agreement is an international treaty and hence the main part and the annexes are all part of the international agreement in principle at the same level as binding legal provisions, see Fenger (2006), p. 137. There is academic discussion on the extent to which the EEA Agreement parallels the EU legal order on this point, see a recent contribution Fredriksen (2014), pp. 95–113, see also the previous chapter Introduction, Chap. 1, footnote 43.
- 14.
See for example Dougan and Spaventa (2003), pp. 703, 705.
- 15.
See the following statement in paragraph 23 in the recent decision in case C-359/13 Martens: ‘In that respect, it must be stated that, although the Member States are competent, under Article 165(1) TFEU, as regards the content of teaching and the organisation of their respective education systems, they must exercise that competence in compliance with EU law and, in particular, in compliance with the Treaty provisions on the freedom to move and reside within the territory of the Member States, as conferred by Article 21(1) TFEU on every citizen of the Union (judgments Joined Cases C-11/06 and 12/06 Morgan and Bucher [2007] ECR I-9161, paragraph 24, and Prinz and Seeberger, EU:C:2013:524, paragraph 26 and the case-law cited’.
- 16.
Some of the rights analysed in the next chapter may be relevant for patients and students such as social security benefits and tax rights. However, the perspective in the next chapter is not concerned with the rights of free movers in their capacity of being patients or students which is the topic for the present chapter.
- 17.
- 18.
See for an analysis of healthcare services as a positive right and a critical approach to the CJEU’s case law where the author thinks individualism in respect of national health resources is more likely to generate unequal access to care, Newdick (2006), p. 1665.
- 19.
See Palm (2002), pp. 196–197.
- 20.
Hervey (2011a), p. 186.
- 21.
Newdick (2006), p. 1650.
- 22.
- 23.
Hervey (2011b), p. 188.
- 24.
- 25.
- 26.
A recent letter of formal notice regarding the organisation of the right to health care services abroad in the Norwegian legislation from the EFTA Surveillance Authority is also made part of the analysis, see Sect. 3.2.4.
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Fløistad, K. (2018). Free Movement of Services and Article 56 TFEU and Article 36 EEA. In: The EEA Agreement in a Revised EU Framework for Welfare Services. Studies in European Economic Law and Regulation, vol 13. Springer, Cham. https://doi.org/10.1007/978-3-319-95043-3_2
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