SECTION 1 –
HEALTH CARE. KOHLL AND DECKER JUDGMENTS
Text and translation by Claudia Regina de Oliveira Magalhães da Silva Loureiro, Permanent and Effective Professor of the master’s Program in Law School and Coordinator of the Global Crossings Project at the Federal University of Uberlandia, Jean Monnet Chair in Brazil – European Union – Erasmus+
The judgments are extremely important and represent two leading cases for health care in the European Union. Both deal with unnecessary authorization for scheduled outpatient care in another member state.
In 1994, R. Kohll, a Luxembourg national, wanted his minor daughter to be treated by an orthodontist established in Germany and sought authorization from the Luxembourg social security fund, which was refused. Invoking the freedom to provide services (and not Regulation No 1408/71), Mr. Kohll considered that he was entitled to choose to have his daughter treated in Germany without prior authorization and to claim reimbursement of the costs from his sickness insurance fund.
The Court held that treatment by a health professional must be regarded as a service and, accordingly, the prior authorization requirement constitutes an obstacle to the freedom to provide services inasmuch as such authorization discourages persons insured under the social security scheme from using providers of health services established in another Member State. The Court also points out that such legislation was not justified by a serious risk to the financial balance of the social security system or on grounds of public health (28 April 1998, Kohll, C-158/96).
For its part, the Decker judgment established that prior authorization is not required for the acquisition, in another Member State, of prescription-only medical products or devices.
A patient who is prescribed medicinal products or medical devices by a doctor established in one Member State may decide to purchase the products from a pharmacy in another Member State (whether he physically goes there or buys them by mail order). This was the case for Mr. Decker who, in 1992, bought spectacles in Belgium that had been prescribed by an ophthalmologist established in Luxembourg. The Luxembourg health insurance company refused to reimburse the glasses on the ground that this purchase had been made abroad without prior authorization.
The Court of Justice has held that refusal to reimburse medical products purchased without prior authorization in another Member State constitutes an unjustified obstacle to the free movement of goods, and that patients may purchase, without prior authorization, their medical products or devices in another Member State and claim reimbursement from their health insurance company at the rates applicable in their own country (28 April 1998, Decker, C-120/95).
REFERENCE
COURT OF JUSTICE OF THE EUROPEAN UNION. Available at: https://curia.europa.eu/jcms/jcms/p1_2018914/pt/. Access at: May 22, 2023.
SECTION 2 –
CASE OF HIRSI JAMAA AND OTHERS v. ITALY
(Application no. 27765/09) 23 February 2012
Text and translation by Claudia Regina de Oliveira Magalhães da Silva Loureiro, Permanent and Effective Professor of the master’s Program in Law School and Coordinator of the Global Crossings Project at the Federal University of Uberlandia, Jean Monnet Chair in Brazil – European Union – Erasmus+
The case of Hirsi Jamaa and others v. Italy was judged by the European Court of Human Rights, which held that if the migrants are inside a vessel of a State, in this case, an Italian vessel (deployed to prevent the migrants from entering the Italian territory), they are under the jurisdiction of the State, and it is contrary to international law, especially the principle of non-refoulement, to try to keep them out of waters under its jurisdiction.
The Court also pointed out that the practice is contrary to art. 3 of the European Convention on Human Rights, constituting a collective expulsion, also violating art. 4 of the same European document.
REFERENCE
EUROPEAN COURT OF HUMAN RIGHTS. Case Hirsi Jamaa and others v. Italy. Appl. no. 27765/09. Judgment on 23 February 2012. Available at: https://hudoc.echr.coe.int/app/conversion/pdf/?library=ECHR&id=001-109231&filename=001-109231.pdf. Access at: May 22, 2023.
SECTION 3 –
ADVISORY OPINION nº 23/2017
Text and translation by Claudia Regina de Oliveira Magalhães da Silva Loureiro, Permanent and Effective Professor of the master’s Program in Law School and Coordinator of the Global Crossings Project at the Federal University of Uberlandia, Jean Monnet Chair in Brazil – European Union – Erasmus+
In 2017, the Inter-American Court of Human Rights issued Advisory Opinion nº 23/2017 on the intrinsic relationship between the environment and human rights, which had great influence from transnational social movements to promote the human right to an ecologically balanced environment.
This Advisory Opinion pointed out that access to an ecologically balanced environment is a condition for the exercise of other human rights, a position that also opens the way for the autonomous judicialization of the right to the environment in the Inter-American System from article 26 of the 1969 American Convention on Human Rights.
Moreover, the Opinion under analysis also pointed out that several fundamental rights require a necessary precondition for their exercise, a minimum quality of environment. Thus, the relationship between environmental protection, sustainable development, and human rights is reflected in the Stockholm Declaration, which states that economic and social development is indispensable for the environment. This idea is also reflected in the 2030 Agenda, which states that the achievement of human rights depends on economic, social, and environmental development (EHRC, 2017, paras. 56-70).
REFERENCE
INTER-AMERICAN COURT OF HUMAN RIGHTS. Advisory Opinion nº 23/2017. Available at: https://www.corteidh.or.cr/sitios/libros/todos/docs/infografia-por.pdf. Access at: Oct. 29, 2022.
SECTION 4 –
PROCREATION AT ANY COST: DUTCH FOUNDATION SUES SPERM DONOR WHO ALLEGEDLY HAD MORE THAN 550 CHILDREN.
Text and translation by Izabella Vieira Nunes, master’s degree student in Law School, Universidade Federal de Uberlandia, CAPES scholarship, Brazil.
Autonomy has gained relevant prominence in the existential sphere, as well as responsible family planning, both considered basic human rights, protected by national and international laws.
From this perspective, although biotechnology, especially regarding the techniques of assisted human reproduction, have developed as a potential instrument for the materialization of the parental project (DINIZ, 2017), cautious is needed. For this brief analysis, we bring the case of the Dutch donor sued for violating the local regulations and originating more than 550 biological children.
The unfolding of the dignity of the human being demands the complementation of the classic business precepts that, added to the social function of the contract and other fundamental principles for the promotion, development, and protection of the human being, aim to realize the reinterpretation of freedoms in the light of human rights.
According to news broadcasted media, a 41-year-old man is accused of disregarding the limits of donation of genetic materials for assisted human reproduction in The Hague, the Netherlands. According to O Globo (2023), Jonathan M. is accused of being the biological father of at least 550 children.
The Donorkind Foundation, which studies genetics to find possible biological siblings, filed a lawsuit to prevent the continuity of the supply of genetic material, because, according to local legislation (O GLOBO, 2023), the product supplied by a single donor could be used to generate up to 25 embryos. The purpose of this limitation is so called involuntary incest, roughly speaking, procreation among biological siblings.
The Dutchman had previously been accused of disrespecting national regulations at an earlier time, moreover, his donations were not limited to the Netherlands. Reports indicate that after the limitation to make any more donations to Dutch clinics, Jonathan migrated to social networks, where he started offering gamete donation services.
Tepedino (2009, p. 62) teaches that the growing vulnerabilities of the human person in the “internationalization of the economy and the problems that transcend the geographical barriers of countries” vindicate a “vigilant control of private autonomy”. From this point of view, the protection of human rights is not confined only to the public sphere, but also and above all in the private sphere.
The bio-legal and bioethical debates for the unlimited donation of genetic materials need to be widely discussed considering the evident international public health issue. The damage and consequences to physical and mental health are alarming and, at times, unknown.
Therefore, an examination of social practices at the standards of human rights reveals itself to be fundamental, as opposed to the sectorialization of the protection of human rights.
REFERENCES
DINIZ, Maria Helena. O estado atual do Biodireito – 10. ed. – São Paulo: Saraiva, 2017.
O GLOBO. Fundação da Holanda processa doador de esperma que teria tido 550 filhos. [S. l.], 2023. Portal O Globo Mundo. Available at: https://oglobo.globo.com/mundo/noticia/2023/03/fundacao-da-holanda-processa-doador-de-esperma-que-teria-tido-550-filhos.ghtml. Access at: May 10, 2023.
SARLET, Ingo Wolfgang. As dimensões da dignidade da pessoa humana: construindo uma compreensão jurídico-constitucional necessária e possível. Revista Brasileira de Direito Constitucional, no 9, p. 361-388, jan./jun. 2007. Available at: http://www.esdc.com.br/RBDC/RBDC-09/RBDC-09-361-Ingo_Wolfgang_Sarlet.pdf. Access at: May 05, 2023.
TEPEDINO, Gustavo. Temas de Direito Civil – Tomo III. – Rio de Janeiro: Renovar, 2009.
2. FIGHTING CLIMATE CHANGE IS A PRIORITY FOR THE EUROPEAN PARLIAMENT
Text and translation by Andressa Gabriela de Lima Pimenta, undergraduate student in International Affairs, Universidade Federal Uberlandia, Brazil.
According to the data worked in the reports of the European Parliament, in the year 2019, the European Union was considered as the fourth largest emitter of gases that cause the greenhouse effect, such as CO2. The data presented by Climate Watch also confirm that in the same year, the world emission of greenhouse gas was 46.3 billion tons, with the EU being responsible for 7.3% of this number.
Thus, the concern regarding climate change on the European continent is due to the consequences that these changes may entail, with the risk of loss of biodiversity, increased forest fires, reduced agricultural production and increased temperature. from the planet. With a high interest in negotiations that may contain climate change on the international stage, the EU has been seeking new solutions based on policies and agreements that help reduce emissions.
This effort has been reflected in some improvements, such as a 31% drop in emissions by the year 2020. However, the European Parliament also understands that efforts should be continued and that new targets should be established for the next year. From the European Green Deal, signed in 2021, the European Parliament established that climate neutrality and the goal of net zero emissions by 2050 should be linked with the legislative apparatuses that are related to the fight against climate change for the EU States.
In addition to the Pact, Parliament also supported some measures such as the EU emissions trading system, also known as ETS. This regime authorizes, with the aim of regulating and supervising, companies to buy a license to emit gas from a payment to the European Union. According to the European Parliament website, this system will still be improved so that the targets can achieve a reduction of emissions by the industry of about 60% by the year 2030.
The role of Parliament has also been gaining prominence in support of proposals made by the European Commission and in voting on measures that regulate the emission of gases from the different transport routes, in relation to the fight against deforestation, the regulation of soil use and in the promotion of renewable energies. Another important measure also approved by Parliament so far, was due to measures that establish a carbon price from the importation of products from countries that are not collaborating in combating the emission of greenhouse gases.
REFERENCES
UNIÃO EUROPEIA. Parlamento Europeu. As medidas da UE contra as alterações climáticas. [S.l.]. UE, 2023. Available at: https://www.europarl.europa.eu/news/pt/headlines/priorities/cambio-climatico/20180703STO07129/medidas-da-ue-contra-as-alteracoes-climaticas. Access at: May 13, 2023.
UNIÃO EUROPEIA. Parlamento Europeu. Alterações climáticas na Europa: factos e números. [S.l.]. UE, 2023. Available at: https://www.europarl.europa.eu/news/pt/headlines/priorities/cambio-climatico/20180703STO07123/alteracoes-climaticas-na-europa-factos-e-numeros. Access at: May 13, 2023.
EUROPEAN COMMISSION. Key figures on the EU in the world. Luxembourg: Publications Office of the European Union, 2023. ISBN: 978-92-76-61987-1. Available at: https://ec.europa.eu/eurostat/documents/15216629/16118334/KS-EX-23-001-EN-N.pdf/d4413940-6ef7-2fa8-d6f1-a60cdc4b89f3?version=1.0&t=1676459907834. Access at: May 12, 2023.
3. GET TO KNOW THE EUROPEAN ECOLOGICAL PACT
Text and translation by Valéria Emília de Aquino, PhD Student, Human Rights, Law School, Universidade Federal de Goias, Brazil and CAPES scholarship, Brazil/ University of Florence, Italy.
Approved in December 2020, the European Ecological Pact, also called the European Green New Deal, is a package of measures adopted by the bloc, to be implemented by member countries, in order to combat the worsening impacts of climate change in Europe and the world. With the aim of making Europe the first climate neutral continent, eliminating pollution, and establishing a circular economy, among its main goals is the end of net greenhouse gas emissions by 2050.
Furthermore, the pact is based especially on sustainability and on the concept of just transition, in the sense that these measures, in favor of greener economies, should not leave anyone behind, and should incorporate the most diverse sectors. Thus, the creation of a “Fair Transition Fund” is also proposed – to support the people and regions most affected by the transition towards a low-carbon economy, or decarbonization –, which should mobilize around 100 billion euros in investments public and private.
The Pact also still focuses on other areas such as: protection of biodiversity; guarantee of the right to a healthy, healthy, clean, stable, and sustainable environment; the fight against environmental degradation; conscious and sustainable consumption; and the promotion of a “green” market. For example, the Circular Economy Action Plan aims to promote the sustainable use of resources with a high environmental impact, such as textiles, construction, and plastic waste.
In order to achieve these goals, the Pact was transformed into the European Climate Law, with the aim, therefore, that the European economy and society become neutral until the year in question. Finally, it is worth mentioning that this law also established the intermediate goal of reducing net greenhouse gas emissions by 55% by 2030.
REFERENCES
COMISSÃO EUROPEIA. Climate action: Lei Europeia do Clima. Available at: https://climate.ec.europa.eu/eu-action/european-green-deal/european-climate-law_pt. Access at: May, 08 2023.
EUROPEAN PARLIAMENT. The European Green Deal. Available at: https://www.europarl.europa.eu/legislative-train/theme-a-european-green-deal/file-european-green-deal. Access at: May, 08 2023.
4. ARTIFICIAL INTELLIGENCE ON THE EUROPEAN COURT OF AUDITORS’ RADAR
Text and translation by Caíque Viana, undergraduate student in International Affairs, Universidade Federal Uberlandia, Brazil.
The European Court of Auditors (ECA) is assessing the EU’s actions to support the development of artificial intelligence (AI) and its impact on Europe’s competitiveness. It is worth noting that AI development is essential for the EU’s digital transition, particularly in the fields of industrial policy and strategic autonomy. However, Europe is falling behind the United States in key aspects such as funding. For instance, in 2021, less than 10% of EU companies were utilizing AI, with significant disparities among countries. While countries like Denmark, Portugal, and Finland had adoption rates above 15%, others such as the Czech Republic, Greece, Latvia, Lithuania, Bulgaria, Estonia, Cyprus, Hungary, Poland, and Romania had rates below 5%, highlighting the need for the EU to invest more in this technology to keep up with technological advancements.
Furthermore, according to the press release from the European Court of Auditors, the European Union plans to allocate approximately €10 billion from its budget between 2014 and 2027 to boost the development of artificial intelligence and gradually increase investments to €20 billion per year in the next decade. Another important factor mentioned in this press release is that at least 20% of the €724 billion from the Recovery and Resilience Facility (RRF), created in response to the COVID-19 pandemic, could be directed towards financing the digital transition of the Union. Additionally, the InvestEU Fund stated that it will mobilize €6.6 billion for research, innovation, and digitization. Furthermore, the audit conducted by the European Court of Auditors also aims to verify whether the EU is indeed meeting the essential conditions to foster the development of this crucial tool that is AI. Therefore, the European Court of Auditors will assess whether the European Commission will be capable of ensuring that the invested funds effectively promote the creation of a competitive and suitable European ecosystem for this sector, taking into consideration the strategic importance and the security and control risks associated with this technology.
It is also important to mention that the European Commission adopted a coordinated plan in 2018, updated in 2021, to achieve leadership in AI development and deployment while ensuring its ethics and safety. The ECA will release its audit report in approximately one year, providing observations, conclusions, and recommendations regarding the EU’s actions concerning AI.
Global competition in the field of AI is intense, and Europe cannot afford to fall behind. AI brings significant benefits across various sectors and is essential for driving EU competitiveness. The ECA’s audit will be crucial in ensuring that the EU’s efforts are adequate, and that Europe does not miss out on technological advancements.
REFERENCES
Schneider, L. R. (2021). Oportunidades e desafios da inteligência artificial no setor público: o caso do tribunal de contas de Portugal [Dissertação de mestrado, Iscte – Instituto Universitário de Lisboa]. Repositorio Iscte. Available at: http://hdl.handle.net/10071/24312 Access to: May 19, 2023
TRIBUNAL DE CONTAS EUROPEU (TCE). (2023). A inteligência artificial na mira do Tribunal de Contas Europeu [comunicado à imprensa]. Luxemburgo. Available at: https://www.eca.europa.eu/Lists/ECADocuments/INAP-2023-02/INAP-23-02_PT.pdf. Access to: May 19, 2023.
