The Case Law of the European Court of Justice

November 7, 2009

Many of the socio-economic rights incorporated into the Charter of Fundamental Rights of the European Union (EU) have already been given recognition by the European Court of Justice (ECJ). In relation to the workings of the single market, throughout the history of the European Community (EC), it was not the case that its negative aspects had been addressed primarily through legislation. It was rather the case that the ECJ formed through its case law a “theory of social rights, which defines the limits of European economic integration much more than the EC legislation in force would suggest.”[1] In this section we will deal with that case law in order to demonstrate the powerful role of the ECJ in shaping human rights in the EU, which has important implications for the future of economic, social and cultural rights and the notion of the indivisibility and interdependence of human rights. The ECJ was the first EU body to emphasise the need for the protection of the human rights for the individual and has set standards of protection. It is itself in large part responsible for the inclusion of socio-economic rights on the Community’s agenda.[2]

The ECJ has ruled on a number of cases concerning the social policy arrangements of the Member States of the EU in relation to free movement. All EU Member States reimburse medical expenses that occur in another Member State as long as prior authorisation is given for foreign medical treatment or if the medical treatment is urgent. However, two cases, Decker[3] and Kohll[4], were considered exceptions to the rule by the Court. In the former, a Luxembourg national who purchased a pair of spectacles in Belgium was denied reimbursement for them on the grounds that he purchased them without prior authorisation from his sickness fund. The latter concerned another Luxembourg national whose daughter was refused treatment by a German orthodontist since the same could be provided in Luxembourg and the treatment was not considered to be urgent. Keeping in mind that barriers of this kind may be imposed in order not to harm the financial balance of the social security systems, the Court ruled that these two particular cases did not pose such a threat to national social security systems. Thus the principle of free movement prevailed.

The ECJ has also played a key role in defining the notion of EU citizenship before it was mentioned in the EC Treaty.[5] It has done this through extending the principle of non-discrimination based on nationality, which was originally intended for the protection of workers and freedom to provide services. The Court has extended this principle to include the benefits of social security in relation to free movement and also to include those who are not the providers of services, but recipients of services. This was done for the first time in the case of Ian William Cowan v. Tresor Public[6]. This case concerned a British citizen, Mr. Cowan, who had been attacked at the exit of a metro station in Paris. Mr. Cowan had not gone to France as a worker or as a provider of services and since his attackers were not identified he was not eligible to receive compensation for his physical injury. Nevertheless, the Court decided that even foreign recipients of services are entitled to the same treatment as the Member State’s nationals.

However, the ECJ has not only extended “circle of beneficiaries as to include other EC nationals but has also broadened the ambit of national social rights to non-EC nationals and thereby moved beyond European citizenship.”[7] This refers to migrant workers whose native countries have association agreements with the Community, but even here the ECJ has extended the scope of the agreements. In Henia Babahenini v. Belgium[8], the wife of a retired Algerian worker was denied a disability allowance in Belgium, as she was not a migrant worker herself. The Court rules that the agreement between the Community and Algeria did also include the members of the family of the migrant worker.

The above examples of the ECJ’s case law serve to depict its socially activist role. Moreover, it is clear that many of the socio-economic rights included in the Charter of Fundamental Rights of the EU have already been established in the case law of the ECJ. It is stipulated in Article 52 (2) of the Charter that rights based on EC Treaties or the TEU are subject to the conditions and limits outlined in those Treaties. Thus, the Charter cannot either widen or reduce the scope of those rights. Nevertheless, in fulfilling its primary duty of making rights more visible to EU citizens, the Charter undoubtedly signals an advance in the public awareness of those rights that have already been established in the case law of the ECJ.

[1] Koen Lenaerts and Petra Foubert, ‘Social Rights in the Case-Law of the European Court of Justice: The Impact of the Charter of Fundamental Rights of the European Union on Standing Case-Law’, in Eide et al (eds.), Economic, Social and Cultural Rights, 163.
[2] Ibid, 175.
[3] Case C-120/95 Nicholas Decker v. Caisse de Maladie des Employes Prives [1998] ECH I-1871.
[4] Case C-158/96 Raymond Kohll v. Union des Caisses de Maladie [1998] ECR I-1935.
[5] Lenaerts and Foubert, 170.
[6] Case 186/87 Ian William Cowan v. Tresor Public [1989] ECR 216.
[7] Lenaerts and Foubert, 172.
[8] Case C-113/97 Henia Babahenini v. Belgium [1998] ECR I-813.

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