Eleanor Spaventa

Public Services and European Law: Looking for Boundaries

All member states must, as a matter of Community law, provide for a qualified right to go to another Member State to receive treatment at the expense of the competent social security system. According to Article 22 of Regulation 1408/71 such a right is conditional upon prior authorisation by the competent institution. Authorisation cannot be refused when the treatment is amongst the benefits provided for by the State where the individual resides and the treatment cannot be provided within the time ‘normally necessary’ for obtaining the treatment in the State of residence. The Court however has found that Article 49 EC imposes upon Member States obligations that go beyond those contained in the Regulation: thus a prior authorisation requirement constitutes a justified barrier (subject to important qualifications) in the case of hospital treatment and a non-justified barrier in the case of nonhospital treatment. The effects of this interpretation are far-reaching: not only do Member States see their obligations under Community law redefined in a way which might have a significant financial impact on their social security systems; but also the reasoning of the Court could be applied to other branches of the public sector, such as education.

On Discrimination and the Theory of Mandatory Requirements

According to the traditional view, quantitative restrictions and discriminatory rules could be justified only according to the Treaty derogations contained in Article 30 of the EC Treaty. On the other hand, most indistinctly applicable measures, benefit also from other and broader grounds of justification: the mandatory (or imperative) requirements. This distinction has been in recent years occasionally disregarded by the Court: this has led to a certain degree of confusion as to the theoretical explanation of the mandatory requirements doctrine. In particular doubts have been raised as to whether the mandatory requirements should not in fact be considered as additional grounds of derogation to those listed in Article 30 EC.

Fundamental rights and the interface between second and third pillar

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