WRITTEN QUESTION E-1464/03

by José Ribeiro e Castro (UEN) to the Commission

(29 April 2003)

Subject: European charter for children in hospital

The Commission's answer to Question P-3850/02(1) appears to suggest that there is increasingly solid support for the view that The treatment of children in hospital is a subject related to the organisation and delivery of health services and medical care which are matters for the Member States. Accordingly, The Commission does not intend to make any proposals in relation to a charter for children in hospital'.

However, in the first place the Court of Justice has already recognised the principle set out in Article 152(1) EC that all Community policies must ensure a high level of human health protection(2). The Court has been tending to consider that the Union is competent to lay down harmonised criteria intended ultimately to protect public health, having particular regard to the criterion of a high level of protection (Article 95(3)), although the proportionality principle must be deemed to constitute a specific limit.

Secondly, since as long ago as May 1986 the Commission has had a compelling reason if not a duty to submit a proposal because Parliament adopted a resolution(3) in which it explicitly called on the Commission to submit a proposal for a European charter on the rights of patients and for a European charter on the rights of children in hospital.

Can the Commission answer the following questions?

Does the Commission still believe that it should not submit a proposal for a European charter for children in hospital because the matter lies outside its responsibility? How does it view both the implications of the Court's case law regarding Article 152 of the TEC and the express request made by Parliament in 1986, which has gone unheeded ever since?

(1) Written Question P-3850/02 by Françoise Grossetête to the Commission (18 December 2002), together with the answer given by David Byrne on behalf of the Commission on 23 January 2003. See also the question by Adeline Hazan (P-0158/03) and David Byrne's answer of 18 February 2003.

(2) Conclusions delivered by Advocate-General L. A. Geelhoed on 10 September 2002 in Case C-491/01 The Queen v Secretary of State for Health ex parte British American Tobacco (Investments) Ltd and Imperial Tobacco Ltd (interveners: Japan Tobacco Inc. and JT International SA).

(3) OJ C 148, 16.6.1986, p. 37.

Answer given by Mr Byrne on behalf of the Commission

(11 June 2003)

It is indeed true that the first paragraph of Article 152 of the Treaty establishing the European Union stipulates that a high level of human health protection shall be ensured in the definition and implementation of all Community policies.

However, a distinction must be drawn between public health issues, where the Union has a role to play, and health-care issues. In that respect, paragraph 5 of the same Article clearly states that Community action in the field of public health shall fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.

The treatment of children in hospital, as well as the rights of these patients, is the sole responsibility of the Member States, not of the Community.

Therefore, the Commission does not have the competence to come forward with proposals for a European charter on the rights of patients and for a European charter on the rights of children in hospital.

The Opinion delivered by Advocate-General L. A. Geelhoed on 10 September 2002 in Case C-491/01 does not alter that position. The focus of that particular Case is on the protection of public health and not on the harmonisation of health care.