WRITTEN QUESTION P-1167/04 by José Ribeiro e Castro (UEN) to the Commission. Regulation No 1954/2003: fishing activity in the Azores EEZ.
Date: 2004-04-07
Institutions: European Parliament, Provisional data
Subjects: Azores, Spain, application of EU law, application of the law, fishing regulations

3.4.2004

EN

Official Journal of the European Union

C 84 E/953

According to the ruling by the European Court of Justice in the case of Geraets-Smits v. Stichting
Ziekenfonds (Case C-157/99), a patient can be denied medical treatment abroad only if ‘the patient can
receive the same or equally effective treatment without undue delay from an establishment with which his
sickness insurance has contractual arrangements.’

Considering that ‘undue delay’ is determined by a patient’s clinical need, what steps has the Commission
taken to ensure that the assessment of a patient’s need is not compromised by the financial considerations
of the competent institutions?

Answer given by Mr Bolkestein on behalf of the Commission

(30 April 2004)

In some Member States, patients are facing sometimes long waiting periods before getting medical
treatment which may prejudice their state of health.

The Court in its judgement in Smits and Peerboom (1) and in Muller-Fauré-van Riet (2) indicated that
authorisation to receive treatment in another Member State may be refused only if treatment which is the
same or equally effective for the patient can be obtained without undue delay in the Member State of
registration of the patient. The Court put the patient’s medical situation first in indicating that in
‘the national authorities are required to have regard to all
considering the condition of undue delay,
circumstances of each specific case and take due account not only of the patient’s medical condition at the
time when authorisation is sought and where appropriate, of the degree of pain and the nature of the
patient’s disability which might, for example, make it impossible or extremely difficult for him to carry out
a professional activity, but also of his medical history’ (Müller-Fauré/van Riet, C-385/99, paragraph 90).
the
Member States are therefore required to make an assessment on a case-by-case basis of all
circumstances surrounding the medical situation of the patient concerned and cannot simply refer to pre-
defined waiting times to refuse an authorisation for hospital treatment abroad.

The Commission would wish to inform the Honourable Member that in order to improve legal certainty
for the sake of patients who benefit as recipients from the free movement of services, and for health
professionals and managers of social security systems, it has recently adopted a proposal for a Directive on
Services in the Internal Market (3) that clarifies the conditions under which Member States shall ensure that
authorisation by their social security system is given for the assumption of the costs of hospital care
provided in another Member State. In particular, it specifies that such authorisation cannot be refused
where the treatment in question is among the benefits provided for by the legislation of the Member State
of affiliation and where such treatment cannot be given to the patient within a time frame which is
medically acceptable in the light of the patient’s current state of health and the probable course of the
illness.

This will allow medical practitioners to ensure that, where medically necessary, their patients can benefit
from the principles of the Internal Market. It will also assist Member States to make more efficient use of
existing health care infrastructures within the Union.

(1) Smits and Peerbooms judgement, Case C-157/99 of 12.07.01, ECR 2001 p. I-05473.
(2) Müller-Fauré and van Riet judgement, Case C-385/99 of 13.05 003, ECR 2003 p. I-04509.
(3) COM(2004) 2 final.

(2004/C 84 E/1053)

WRITTEN QUESTION P-1167/04

by José Ribeiro e Castro (UEN) to the Commission

(7 April 2004)

Subject: Regulation No 1954/2003: fishing activity in the Azores EEZ

The Commission stated in its answer to my written question P-0455/04 (1) of 11 March 2004 on
Regulation No 1954/2003 (2) and fishing by Spanish vessels between the 100-mile and 200-mile limits of

C 84 E/954

Official Journal of the European Union

EN

3.4.2004

the Azores Exclusive Economic Zone (EEZ), basing its reply on Article 16 of the regulation, that the
regulation came into force on 14 November 2003, a fact which no-one has questioned or is questioning.

Nonetheless, a moratorium has in fact been imposed with regard to the continued applicability on a
transitional basis of Regulations (EC) Nos 685/95 (3) and 2027/95 (4), given that Article 15 of the new
Regulation (EC) No 1954/2003 states that those other regulations from 1995 shall be repealed only with
effect from 1 August 2004.

As the new regime is materially incompatible with that deriving from the two older regulations, it has to
be concluded, pursuant to Regulation (EC) No 1954/2003 itself, that:

(1) up to 1 August 2004 the regime in force is still that of Regulations (EC) Nos 685/95 and 2027/95,

since they are repealed only from that date; and

(2)

the new regime will only come properly into force from that same date.

The Commission:

(cid:1) can it explain why it

intends to bring forward to 14 November 2003 the starting-date for
implementing the new regime for access to certain areas and stocks, when Regulation (EC) No 1954/
2003 states quite explicitly and with all clarity that until 1 August 2004 the regime of the 1995
regulations will still be in force and that those regulations are repealed only from that date?

(cid:1) does it in fact believe that the two regimes are compatible and can be applied simultaneously? If so,
how? How can there be any compatibility between rules stating respectively that fishing may still be
limited and that there are no restrictions, for the same waters? On the basis of what interpretation,
scope and legal basis could this be the case?

(1) See page 403.
(2) OJ L 289, 7.11.2003, p. 1.
(3) OJ L 71, 31.3.1995, p. 5.
(4) OJ L 199, 24.8.1995, p. 1.

Answer given by Mr Fischler on behalf of the Commission

(26 April 2004)

The Commission reaffirms its position to the Honourable Member as regards Council Regulation (EC)
No 1954/2003 of 4 November 2003 on the conditions applicable to fishing activities in the waters around
the Azores, which is as follows:

(cid:1) Article 5 of that Regulation contains a scheme for limiting fishing effort in these waters. That
provision is different from the scheme applicable under Council Regulation (EC) No 2027/95 of
15 June 1995 which restricts access to all waters under the sovereignty or jurisdiction of Portugal and
Spain to vessels flying the flag of the respective Member State.

(cid:1) Confusion may have arisen as to the applicability of the starting date as a result of the fact that
Article 15 of that Regulation does not repeal the previous Regulations until the date of entry into force
of the implementing Regulation, or on 1 August 2004 at the latest.

(cid:1) However, this provision does not affect the date of entry into force of Regulation (EC) No 1954/2003
and in particular Article 5 thereof. It is often the case that a particular question is governed by more
than one legal provision. Where these conflict, the most recent rule applies. This is the case with
Article 5 of Regulation (EC) No 1954/2003. That Article gives less extensive exclusivity to Spanish and
Portuguese vessels than the previous scheme, which has not yet been formally repealed. In this case
the most recent rule, i.e. Regulation (EC) No 1954/2003, takes precedence.