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§ 3.3. Features of realisation of a right to health protection in conditions ekoyonomicheskoj integration within the limits of the European Union

Researches in the field of legal problems of the European integration tradiyotsionno concern, first of all, the legal nature of the European communities, and takyozhe economic mutual relations within the limits of the European Union.

Rather maloizuchennoj area there is a legal registration of integration of the countries - of participants of the European Union in the special questions, one of which be social security of citizens of the European Union. In the present section how the problem of interstate regulation of a right to health protection refracts in a context of legal space of the Euroyopejsky Union is considered.

Integration within the limits of the European communities long time carried preimuyoshchestvenno economic character though the contract on the European economic community (EUROPEAN ECONOMIC COMMUNITY) initially contained positions about aspiration to maintenance of social progress of the people of the countries-participants of EUROPEAN ECONOMIC COMMUNITY. As to zdravoohrane -

nija (medical aid) the European Union, unlike others mezhdunayorodnyh the organisations in Europe, formally does not possess the right direct reguliroyovanija in the given area [365 [366]. On the contrary, in sphere of protection of public health, on the basis of item 152 of the Contract on the European Union (the Maastricht contract), Council

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Has the limited powers in realisation of direct regulation.

Though in the Maastricht and Amsterdam contracts it has been given more

Attention to such areas of cooperation as social security and health, a legal basis for EU actions in these areas remains to the extremely limited. Moreover, according to a principle subsidiarnosti, formulated in item 5 of the Roman contract [367], the state-participants reserve all completeness of the competence concerning public health services. The reasons of such distribution komyopetentsii are obvious and connected, first of all, with the expressed territorial principle of the organisation of systems of public health services in the states of EU and sootvetstyovujushchej a tax policy [368]. Besides, as acceptance kommunitarnyh decisions in social sphere is carried out mainly on a basis edinoyoglasija, legal regulation process in this sphere at the all-European level remains to the slowest [369]. In EU the public health services still are considered preyoimushchestvenno the exclusive competence of the state-participants of the Union. poyoskolku health protection generally concerns sphere social obespeyochenija and public services, direct intervention from European inyotegratsionnyh processes and it was not supposed, for they always carried preimushchestyovenno economic character [370].

The given position, however, does not mean, that the public health services remain oblayostju, alien to influence kommunntarnogo the rights. During existence evropejyo
skih communities the sphere of their conducting has undergone essential changes. In dejstviyotelnosti, the European Union has real, gradually extending polyonomochija in health protection sphere that is shown in influence of the European right on processes of the organisation of public health services in the state-participants [371]. There is a big number of various certificates of the secondary European right, and also decrees of EU mentioning to some extent a right to health protection.

Meanwhile, such influence kommunitarnogo the rights has indirect character and are shown, basically, in application of economic norms of the General market to sphere zdravoyoohranenija. The given process draws the big attention of researchers evroyopejskogo the rights and such gradual distribution of action of economic norms on relations in the field of public health services even has received the independent name (Euro-creep) [372]. It will be more low shown, in what features of indirect influence kommunitarnogo the rights to public health services within the limits of the Europejyosky Union consist.

Association of the countries-participants of the European communities is based on four so-called "freedom": to freedom of movement of persons, the goods, services and capitals [373]. It is natural, that in due course there was a question on that, how much these principles приме* nimy to health protection sphere. Theoretically, cannot exist natsionalyonyh restrictions for medical aid reception in other state-participant of EU as citizens of the Union possess a freedom of movement and vyyobora residences within EU territory. The given principle of free movement of persons - one of corner stones of the Roman contract - has passed evoyoljutsiju from the right inseparably linked with the economic rights, to the right grayozhdan EU (item 18 of the Roman contract).

However reception of medical services has essential features. First of all, that fact, σo the most part of expenses on public health services in all state-participants of the Union becomes covered by social security systems
(From 60 % in Portugal to 93 % in Luxembourg) creates a considerable obstacle for practically all these systems are based on a territorial principle, ograyonichivaja a covering only those medical services which are rendered inside -

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The state system of public health services.

EU court repeatedly confirmed, that the organisation social obespecheyonija for the citizens is within the competence of the state-participants of the Union [374]. Realisation of four basic freedom (free movement of the population, the goods, services and the capital) will allow to create home market in which dobroyosovestnaja the competition will provide well-being for all citizens. If iznayochalno also there was a belief that the active policy in the field of economic harmonisation will lead spontaneous and progressive гармоіпізации in area soyotsialnoj are sewn up, formation of the general European market has shown, that the ego was only illusion. Still exist not only the big distinctions in level of the state deductions on social security (and, in particular, on public health services), but also considerable distinctions in the organisation of medical practice and financing of system of public health services [375].

Maastricht and Amsterdam dogovory have considerably expanded kommu - nitarnuju the competence accordingly in the field of health protection and social policy. Achievement of high level of social security and protection zdoroyovja has been especially noted as one of the purposes of the European community (soyootvetstvenno item 2 and 3.1 (the Roman contract).

The Amsterdam contract has expanded legal grounds for actions SoobYOshchestva in the field of public health in section XIII, item 152 Roman dogovoyo
ra. Taking into consideration such change kommunitarnoj the competence, the Euroyopejsky commission has reviewed problems of the policy concerning protection zdoyorovja, first of all, concerning development of systems of public health services [376]. The commission has paid attention to that fact, that ways of reforming of systems zdravoohrayonenija and those financial difficulties which the state-participants have faced, are the important conditions defining results of health protection. It becomes obvious in connection with opening of the Union for the countries tsenyotralnoj and east Europe. And even despite good enough rezultayoty in the field of health protection in the majority of the countries-participants of EU, the Commission obesyopokoena an existing inequality between social classes which dayozhe continues to increase. In this connection the commission is interested in nabljuyodenii behind development of systems of public health services, and also in their financing, rasyopredelenii resources, a role of the state and private insurance, etc.

Nevertheless, regarding 5 items 152 of the Roman contract it is accurately enough told, that Community actions, supplementing social policy of the states, should respect completely responsibility of the state-participants for the organisation and dosyotavku medical services and medical aid. Legislation harmonisation in public health services sphere is not the prospect which has been put in pawn in one of doyopolneny of the Roman contract. On the contrary, the European commission has especially noted a rule about the unanimous decision-making, concerning social obespecheyonija.

Being afraid of that restriction of the right to social insurance by borders goyosudarstva can prevent free movement of a labour, European zayokonodatel has from the very beginning undertaken actions for maintenance of the right to protection ' health for workers-migrants and members of their families. On the basis of a principle svoyobodnogo movements of persons the special system of coordination - reglayomenty 1408/71 [377] and 57472 [378] has been created.

The given regulations do not deny completely terrotorialnyj a principle. Actually, they do not set as the unique purpose to guarantee access to public health services in other states of the Union. The coordination main objective sisyotem public health services consists in providing of access to medical aid in the receiving state for work kov-migrants and members of their families (item 19 regyolamenta 1408/71). Because not in all states of the Union in which workers-migrants live, in the national legislation the right to social insurance is fixed, there is a necessity to unify nayotsionalnye the norms regulating a right to health protection in each gosudarstyove-participant to guarantee medical aid reception in gosuyodarstve residing.

The specified regulations provide three basic ways of reception of medical aid abroad: the emergency help in time preyobyvanija; the planned preliminary authorised help and special poyolozhenija, concerning those who works in other state of the Union [379].

According to conditions existing now koordinatsiyoonnyh norms, the person falling under their action, has the right to a covering stoiyomosti of medical services by competent establishment in other state of the Union "as if this person would be insured in this state". It podrazuyomevaet the identical relation to the persons having the right to reception meditsinyoskoj of the help in national system of public health services, irrespective of them prinadyolezhnosti to this system. But it also means also that the tariffs existing in the state come under to application, rendering services [380].

Preliminary adjusted help can be considered as potentsiyoalnyj the lever of mobility of patients in EU borders. However ways and protseduyory such coordination considerably differ in EU states. The states at own discretion define and-or limit free reception meyoditsinskoj the help abroad [381]. And only in one case in such sanktsioniroyovanii cannot be given up: if the given treatment becomes covered by system sotsiyoalnogo insurance of the state of constant stay, but cannot be in appropriate terms is given by public health services system in the state grazhyodanstva, taking into consideration the present state of health of the patient and predpoyolagaemoe an illness current (item 22 (2) Regulations 1408/71) [382].

There is a question as free movement of patients if the share of preliminary authorisation is increased will develop. It is obvious, that patsienyoty, first of all, aspire to receive treatment nearby from a residence. Besides, the expenses connected with reception (search) of treatment in other gosuyodarstve, remain high enough for patients. For the cores meditsinyoskih services, such factors as language, remoteness, and also common fault inyoformatsii about медіщинской the help abroad and its organisations can rassmatriyovatsja as objective obstacles for transboundary medical aid. However there are also more serious factors, for example, if to patients priyohoditsja long time to expect reception of the help in the country or if they live in frontier regions where treatment abroad is closer and convenient [383].

Acceptance of coordination regulations represents the first, osnovyonoj a way of maintenance of realisation of a right to health protection of citizens of the states -

Participants of the European Union. The coordination system is exposed to the rigid criticism for its complexity and bureaucratism. Recently European commission has made an attempt to simplify coordination rules, having accepted to consideration a number of amendments to koordiyonatsionnym to regulations 1408/71 and 574/72.

The second way of realisation of a right to health protection within the limits of EU is priyoznanie the granted right EU Court. Thereupon it will be a question of two decrees: on business Kohlt [384] and on business Dekeri, 8. The given decisions have received wide izvestyonost in connection with that effect which was made among politicians by Court conclusions.

In both cases two citizens of Luxembourg, having the right on social обеспечеіше in Luxembourg, were refused in indemnification accordingly ortoyodonticheskih the services rendered in Germany (Koh! Γ) and steams of the points bought in BelYOgii and registered by the ophthalmologist in Luxembourg {Deker). Authorised oryogan in Luxembourg has justified refusal by that to them it was not given preliminary sankyotsionirovanie acquisitions of these services and the goods abroad as that is demanded by national norm.

Having addressed in EU Court, these citizens of Luxembourg have achieved a recognition suyodom that the requirement of national norm about preliminary sanktsionirovayonii receptions of services or the goods in other state of EU as a condition for indemnification of cost of such services (goods) is infringement of a principle of free movement of services and the goods, formulated accordingly in item 28 both 30 and item 49 and 50 Roman contracts.

Taking out decisions on affairs Kohll and Deker, the Court has made the following important vyyovody:

1. Member states of EU have the right to carry out the organisation of national systems of social security independently.

2. Despite it, the principle of free movement of the goods and services (sformuyolirovannyj in item 30, 59 and 60 Roman contracts) is applicable as well to area soyotsialnogo maintenance.

3. Even if the regulations 1408/71 demand condition observance about predvaritelyonom authorisation for reception of medical services abroad, it not isyokljuchaet possibility of application of other methods of rendering of treatment and predostavyolenija the goods in other state of the Union (for example, indemnification of expenses in soyootvetstvii with the tariffs applied in the receiving state).

4. The requirement about preliminary authorisation interferes polucheyoniju insured the medical services rendered in other state of the Union and creates thereby an obstacle to free movement of patients.

5. The requirement about preliminary authorisation cannot be opravdayono the statement for serious threat to financial balance in national sisteyome social security, the reasons connected with public zdoyorovem (quality assurance of medical services, care about out-patient and statsioyonarnoj the help, about its balance and availability) [385].

In connection with removal of the given decisions proving the right to reception of medical aid in other states of the Union by economic principles, there is a question on in what degree the economic right of EU is applicable to health protection. Result of consideration of the specified affairs was not only that the Court recognised social security by the area not alien to the right of EU, but also that it also has defined the legal nature of medical services and the goods [386]. Medicines and other medical goods should be considered as the goods, sootvetstvujuyoshchie the purposes of article 28 of the Contract on EUROPEAN ECONOMIC COMMUNITY (an interdiction of quantitative restrictions on imyoport). Medical aid should be considered as service according to item 50 of the Contract on EUROPEAN ECONOMIC COMMUNITY.

Nevertheless, the principle of free movement is not absolute. NaruYOshenie free movement of the goods and services can be justified in two vozyomozhnyh cases [387]:

. Articles 30 and 46 Contracts on EUROPEAN ECONOMIC COMMUNITY establish the limited list isyokljucheny, such as "health protection and a human life" (item 30) and "obshchestyovennoe health" (item 46). The economic reasons, apparently, here are not named.

. The rule of the justification recognised as Court an exception, allowing the states to justify infringement of free movement on the basis more shiyorokogo a principle of the general blessing. At wider interpretation of data prinyotsipa can be put forward and economic reasons. Even if the purposes

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A source: BARTENEV Dmitry Gennadievich. the RIGHT TO HEALTH PROTECTION In INTERNATIONAL LAW. The dissertation on competition of a scientific degree of the master of laws. St.-Petersburg. 2006

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