Economic and Social Patients' Rights in Cross Border Health Services : The Either or Fallacy

The conflict between the economic and the social rights of the patients is treated as a false threat in the present paper. The real conflict is the one of competences between the EU and the national authorities in the field of health service. The member states have the exclusive competence to organize the national health care system, while the EU institutions traditionally act as defenders of the economic freedoms. What is the place of the social rights of the patient in this equation? The Elchinov judgment made clear that not waiting for the prior authorisation to be issued or the simple lack of the authorisation shall not impair the economic rights of the patient and these rights presuppose that the social rights will not be affected in any way by the decision to obtain the treatment abroad.The arguments put forward in this paper lead to the conclusion that the member states are not only trustees for the social protection of the patient as provided under national law, but also for the protection and enforcement of the economic freedoms as provided under Union law. In a logical sentence, the trustees' duties will cover “economic AND social rights” rather than “economic OR social rights”. Accordingly, the member states cannot use the rights granted to the patient under the spectrum of their exclusive competence related to public health and social insurance as a trade-off instrument. The interpretation of EU law leads us to the opposite conclusion that the member states are under an obligation to provide for the protection of “economic AND social rights”. In the light of these findings, the conflicting relation between the social protection of the residents and the economic freedom to obtain health care abroad appears to originate in an either-or fallacy and leads to an incorrect legal interpretation