Within the framework of social rights¹ recognized by the Constitutions of the second postwar period, healthcare right is particularly important, since it represents a preliminary right for the concrete realization of substantial equality principles and for the exercise of other fundamental rights. In fact, scholars have highlighted, in particular with regard to the Italian constitutional context, that:

Social rights substantiate the priority dimension, although not the only one, of the substantial equality principle. It is actually a circular dimension, a two-way dimension: the identification of the “full development of person” and “the participation in the political, economic and social development of the Italian Republic” are the real finalistic values of Article 3, second paragraph of the Italian Constitution, that project social rights beyond a mere containment of social and economic inequality, as well as solidarity.²

As with other social rights, healthcare right needs legislative implementation, as the recognition in a fundamental Charter of a legal system is not in itself sufficient to ensure the effective fulfillment of the rights themselves. At the same time, the effectiveness of these rights does not only depend on the enforcement of the legal provisions, but also on the interpretation of judges, and in particular the constitutional ones, as they are requested to find a balance between different interests.³

This chapter aims at examining the interpretative activity of judges with respect to the protection of healthcare right, studying the evolution of case law within two different legal systems, Italy and the European Union. The choice of these two legal systems is not random, but is justified by the peculiarities of their legislative provisions and their judicial interpretation of healthcare right. The Italian Constitution was one of the first to recognize the health right and the Italian Constitutional Court has undertaken a complex interpretative approach to the definition of the minimum standards within healthcare throughout the Country since the seventies. The European Union recognizes the healthcare right in the EU Charter of Fundamental Rights, but it has no legislative competence in healthcare matters. However, this did not prevent the European Court of Justice (ECJ) to rule on a particular form of exercise of the healthcare right (i.e. patients’ cross-border healthcare rights)⁴ and to outline a set of parameters to exercise it at European level.

Although these two cases may seem very different, these two interpretive judicial settings have two points of contact: one derived from the fact that decisions of the EU judge may well have an effect on the Italian legislation and on any future cases settled by the national judges; another being the common need for interpretation of judges to protect the healthcare right in the economic crisis context and for the redefinition of the welfare State.

Healthcare right, as set out in Article 32 of the Italian Constitution,⁵ represents a rare constitutional provision, since in contemporary Constitutions it is not common to find explicit rules for health protection.⁶ This provision recognizes healthcare as a fundamental right of the individual.⁷ At the same time, it provides a number of implicit rights, connected with healthcare protection: the right of mental and physical integrity, the right to live in a healthy environment, the right to receive healthcare assistance or medical treatment, the right not to be treated or to refuse medical treatment.⁸

For the purposes of this chapter, the attention will be focused on one of these aspects, namely the right to receive healthcare assistance or medical treatment (Article 32(1)) and its interpretation by the Italian Constitutional Court. In this perspective, the right to receive healthcare requires positive actions by public institutions or, in general, by the State.

Within the Italian legal system, the parliament first implemented the constitutional provisions relating to healthcare with law no. 833 of 23 December 1978, which established the National Health Service. This legislative measure was aimed at defining uniform standards of performance across the whole Country, which was guaranteed for all citizens, regardless of their region of residence.⁹

In reality, long before this law was adopted, the Italian Constitutional Court had declared the need for the State to ensure “equal standards” for healthcare throughout the Country, since “hospital care services and healthcare right, which are connected, cannot be changed from region to region”.¹⁰

Based on this setting and interpreting law no. 833/1978, the Italian Constitutional Court has developed a jurisprudence that has helped to better define the concept of “uniformity” of healthcare services. In particular, it is possible to identify three different periods of judicial interpretation: a first phase in the seventies and eighties; a second in the nineties; and a third one, after the constitutional revision of the Italian Constitution.

At first, immediately following the approval of the law on the National Health Service, the Constitutional Court interpreted the concept of essential levels (or uniform standards) regarding healthcare services, that should have been provided uniformly across the whole Country without differences between regions.¹¹ For example, in decision no. 245 of 1984, regarding different mechanisms for allocation of healthcare costs between Italian regions, the Italian Constitutional Court held that healthcare funds:

[H]ave been established to ensure minimum standards of medical treatment uniformly for the National territory …. On the contrary, it is precisely the equality of citizens vis–à–vis healthcare services that risked being compromised if it had continued to apply a differentiated mechanism of allocation of health funds, which might favor the inhabitants of the Trentino-Alto Adige region, to the detriment of all other parts of the Country.¹²

In other words, medical treatment had to be available equally and uniformly, i.e. according to uniform standards, in all Italian regions.

Differently, the nineties marked both a legislative¹³ and a judicial transition. The definition of healthcare standards, due to the necessary financial planning and cost restraints in the healthcare system, began to be balanced with other constitutional interests, such as financial ones. It was during this period that the Constitutional Court set out the concept of healthcare right as a “conditioned constitutional right”. In particular the Italian judge highlighted that:

The right to receive medical treatment, being based on a programmatic constitutional provisions that impose a specific goal to be achieved, it is guaranteed to every personas a conditioned constitutional right by the implementation of Parliament through the balance of the constitutionally protected interests, taking into account the objective limits that it may be in the implementation of organizational and financial resources at its disposal.¹⁴

In this perspective, healthcare right is not absolute, but may encounter restrictions in its implementation. In particular, the parliament and the government may balance healthcare right with objective limits, such as those relating to organizational and financial resources at its disposal in an enclosed period.¹⁵

Furthermore, the Italian Constitutional Court settled the concept of “human dignity” as insurmountable to the restriction of healthcare right, a parameter which the parliament has always to take into account.¹⁶ Standards of medical treatment do not have to be only uniformed, but the concept of essentiality of these standards has begun to better take shape. In other words standards have to ensure at least a minimal protection (minimum standards).¹⁷ In this sense, in the decision no. 509 of 2000, for example, the Constitutional Court reiterated that the balance between the healthcare right and the economic and financial interests should not affect:

[T]he core healthcare right, protected by the Italian Constitution as an inviolable sphere of human dignity, which prevents the creation of situations without protection, that can indeed affect the implementation of that rights.¹⁸

In other words, even though there may be actual economic needs of containment of public health costs, the parliament has to provide for a minimum healthcare protection.¹⁹

In 2001, the constitutional revision of Title V, Part II of the Italian Constitution constitutionalized the minimum standards principle of performance for civil and social rights, which has to be guaranteed for the whole Country (Article 117(2)(m)). This provision attributes the exclusively legislative competence to the State in the determination of these levels.²⁰

The Italian Constitutional Court has been called, immediately after the approval of the constitutional amendment, to interpret this new constitutional provision primarily with reference to the distribution of legislative competence between State and regions. In this regard, the constitutional judge asserted the cross-cutting and flexible nature of the minimum standards of performance, because:

It is not a “issue” in the strict sense, but it is a competence of the Parliament to invest in all matters, with respect to which it has to establish necessary rules to ensure everyone, throughout the Nation, the enjoyment of a guaranteed performance, such as the essential content of these rights, without regional restrictions or conditions.²¹

With reference to the balance between the healthcare right and the economic-financial interests, the Italian Constitutional Court, in line with its previous case law, has further stressed human dignity as an insurmountable parameter against organizational healthcare service needs, even if healthcare right remains a “financially conditioned right”. This approach has proven to be constant in relation to the need of users sharing National Health Service costs and, therefore, it is not incompatible with the constitutional provisions;²² moreover it has been legitimated with reference to the healthcare planning principles, as a means to contain public spending within this sector.²³

In conclusion, the Italian Constitutional Court has contributed to the definition and specification of the inherently ambiguous concept of healthcare minimum standards. Healthcare right is not absolute, but can be declined in relation to economic and financial needs. Minimum and essential levels of medical treatment have to be ensured, referring to human dignity expressly protected by the Italian Constitution.

Within the European legal order, the ECJ has always played a key role in the implementation of Community law as well as in the juridical integration between Member States. Hence, this Court has been identified as the real engine of European integration.²⁴ In fact, many decisions have marked the evolution of the European legal system with a greater convergence and harmonization between the different national legal systems.²⁵

The central role of the Court may also be found in matters related to healthcare right of European citizens. As already mentioned before, healthcare matter is not a competence of the European Union, being a strictly national legislative competence.²⁶ Indeed, Article 168 of the Treaty on the Functioning of the European Union (TFEU) (formerly Article 152 of the European Community Treaty) specifies that the European Union has to ensure a high level of human health protection in the definition and implementation of all Union policies and activities; as a result, Member States have to regulate, in particular, the management of health services and medical care and the allocation of the resources assigned to them. The European Union may only coordinate policy actions between Member States (Article 6 TFEU). These provisions have been confirmed in Article 35 of the EU Charter of Fundamental Rights, which protects the rights of every person to have access to preventive healthcare and to receive medical treatment, under the conditions established by national laws.

Nevertheless, as early as the seventies, in the implementation of the free movement of person principle between Member States and in particular with regard to workers, the European Community has initiated a process of recognition of some rights for citizens of a Member State who are temporarily or permanently in another Member State. Regulations 1408/71 and 574/72²⁷ have specifically tried to coordinate different Member States’ social security systems, providing a range of social security rights for this particular category of citizens (employees, self-employees and their families).²⁸ Among these rights, there is also the opportunity for an employee to request medical treatment in another Member State (under Article 22), first obtaining advance authorization of the State of residence. The original framework established that the State of residence could refuse this authorization if the demand for medical treatments were not legislatively provided by the national legislation of the State of residence, and if this treatment could be practiced in the State of residence within a reasonable amount of time.

Since the nineties, thanks to the interpretation of the judiciary of the European Treaties and the provisions of Regulations 1408/71 and 574/72, the ECJ  has begun to outline a different and additional possibility to access healthcare in another Member State and, above all, the right to receive reimbursement for medical treatment abroad. This judiciary term has seen the Court as the main player in the definition of the right for reimbursement of cross-border healthcare and later (in 2011) a specific legislative provision in this matter has been adopted.²⁹

During this period the Court has also defined what could be identified as “parameters” or minimum elements to access cross-border healthcare for European citizens (“movement of patients”), not just limited to the workers, in the European competence of free movement of persons, goods and services.

The first two leading cases³⁰ concerned two residents in Luxembourg, who, after having obtained healthcare in another Member State, had demanded reimbursement. In the first case, Mr. Kohll requested an authorization for orthodontic treatment for his younger daughter in Germany. His request was denied due to the medical treatment not being necessary and urgent and the fact it could have been obtained directly in Luxembourg. The ECJ, while assessing the Member States competence in determining their social security systems, considered the national legislation, under which reimbursement of healthcare treatment costs provided by an orthodontist established in another Member State is subject to prior authorization by the national institution, was in contrast to the free movement principle of services and consequently the European Treaty (Articles 59 and 60 of the European Community Treaty, now Articles 56 and 57 TFEU):

It must be recalled that aims of a purely economic nature cannot justify a barrier to the fundamental principle of freedom to provide services … However, it cannot be excluded that the risk of seriously undermining the financial balance of the social security system may constitute an overriding reason in the general interest capable of justifying a barrier of that kind. But, contrary to the submissions of UCM and the Luxembourg Government, it is clear that reimbursement of the costs of dental treatment provided in other Member States in accordance with the tariff of the State of insurance has no significant effect on the financing of the social security system.³¹

In the second case, Mr. Decker had purchased spectacles in Belgium and his reimbursement was denied for lack of prior authorization. Even in this case, the EU judge said the contrast of the national legislation concerning prior authorization to have right to reimbursement for medical treatment with European Treaty and, specifically, in contrast to the free movement principle of goods (Article 30 of the European Community Treaty, now Article 34 TFEU).³²

Both the Kohll and Decker cases led to the affirmation of a new parameter within healthcare treatment and reimbursement of healthcare costs incurred in a State other than that of residence. In particular, the ECJ determined that it is not necessary a prior authorization for non-hospital treatment for European citizens applying directly the free movement principles of services and goods.

These first two cases have opened, as mentioned, a judicial season that has led the ECJ to further specify the right for reimbursement of cross-border healthcare for European citizens. Among several key decisions, in the Geraets–Smits and Peerbooms case³³ the Court not only specifies the characteristics of the reimbursement, but also applies the free movement principle of services even those provided by a hospital.

Firstly, the ECJ asserts the neutrality of social security system adopted in a Member State to obtain reimbursement of medical treatment abroad, in the sense that it is not important whether it is a system which the patient has selected and paid directly to the health operator and then subsequently is reimbursed by health insurance institution, as in this case, or if it is a system that allows free care to patients at affiliated health operators. In both social security systems, reimbursement of cross-border healthcare cannot be denied. In fact, the Court points out that:

With regard more particularly to the argument that hospital services provided in the context of a sickness insurance scheme providing benefits in kind, such as that governed by the ZFW, should not be classified as services within the meaning of Article 60 of the Treaty, it should be noted that, far from falling under such a scheme, the medical treatment at issue in the main proceedings, which was provided in Member States other than those in which the persons concerned were insured, did lead to the establishments providing the treatment being paid directly by the patients. It must be accepted that a medical service provided in one Member State and paid for by the patient should not cease to fall within the scope of the freedom to provide services guaranteed by the Treaty merely because reimbursement of the costs of the treatment involved is applied for under another Member State’s sickness insurance legislation which is essentially of the type which provides for benefits in kind.³⁴

The Geraets–Smits and Peerbooms case marks then a further step in the affirmation of the cross-border healthcare right, when the ECJ recognizes and admits the possibility of reimbursement for hospital treatment:

[T]he fact that hospital medical treatment is financed directly by the sickness insurance fund on the basis of agreements and pre-set fees scales is not in any way to remove such treatment from the sphere of services.³⁵

While, on the one hand, the ECJ verifies that, in the implementation of the principle of free movement of services, there is no distinction between the two different types of healthcare treatments (hospital or non-hospital treatment), on the other, the EU judge introduces parameters for the reimbursement of cross-border healthcare. In order to safeguard the financial balance of national healthcare systems, the Court recognizes the need for prior authorization to access to hospital treatment in a State other than that of residence. However, in this case the refusal of the authorization should be based on objective, non-discriminatory criteria which should be identified in advance.³⁶

The interpretative activity of the ECJ did not stop there. Later, until the first legislative codification,³⁷ the Court has intervened both to determine the criteria for the amount of reimbursement for patient who decides to seek medical treatment abroad, and to further specify parameters for the national authorization for cross-border hospital treatment.

Regarding the first aspect (the amount of reimbursement for cross-border healthcare treatment), in an extensive case law the ECJ has noted, first, that the legislation, under which medical costs must be calculated, must be that of the State where patient receives the healthcare treatment, since it would be illogical to quantify the costs based on the regulations of the State of residence. In fact, the EU judge emphasizes that:

The insured person must in principle be entitled to the benefits in kind provided on behalf of the competent institution by the institution of the place where the insured person is staying, in accordance with the provisions of the legislation of the State in which the benefits are provided, as if the covered person were insured in that State. … By guaranteeing that insured persons covered by the legislation of one Member State and granted authorisation have access to treatment in the other Member States on conditions as favourable as those enjoyed by persons covered by the legislation of those other States, that provision helps to facilitate the free movement of persons covered by social insurance.³⁸

Nevertheless, this solution highlights two problematic aspects: on the one hand, the issue of reimbursement when there is a different cost between the medical treatment incurred abroad and that the patient would have paid if the same healthcare service had been provided in the State of residence; on the other hand, the issue of optional costs, such as travel expenses. In several judgments the ECJ has reiterated that any partial reimbursement of cross-border healthcare costs could be an obstacle to the free movement of services:

There is no doubt that the fact that a person has a lower level of cover when he receives hospital treatment in another Member State than when he undergoes the same treatment in the Member State in which he is insured may deter, or even prevent, that person from applying to providers of medical services established in other Member States and constitutes, both for insured persons and for service providers, a barrier to freedom to provide services.³⁹

Therefore, it follows, that States have to fully reimburse the cost for cross-border healthcare. For the optional costs, the Court admits the possibility for Member States to define a maximum amount reimbursable, instead:

The obligation imposed on the competent institution by Article 22 … relates exclusively to the expenditure connected with the healthcare received by the insured person in the host Member State, namely, such as that at issue in the case in the main proceedings, in the case of hospital treatment, the cost of medical services strictly defined and the inextricably linked costs relating to the stay and meals in the hospital.⁴⁰

Turning then to the parameters of the authorization (or contrary to the criteria for defining a refusal to authorize), the ECJ has dealt with these aspects in the Mrs. Watts case.⁴¹ In this regard, it is useful to highlight that Regulation 1408/71 provides that authorization to receive medical treatment abroad may not be refused where the treatment cannot be provided for the person concerned within the territory of the Member State in which he resides (Article 22(2)). In the Watts case, the Court has defined the concept of “reasonable time” to receive medical treatment, precisely in order to safeguard the patients’ healthcare.⁴²