QUESTION 1

The European Union reserves the right to restrict the free movement of its people on the
grounds of public health. The unprecedented move to invoke this right was enacted by
many member states since March 2020 following the outbreak of the COVID-19 pandemic.
Such restrictions have included bans on tourism and mandatory quarantine upon entry to
certain member states.

While certain restrictions in certain states were challenged on the grounds of their
constitutionality – here, we saw the case of O’Doherty and Waters v Ireland – the courts
sided with the argument of public safety and public health. Unfortunately for Fjodor, he has
fallen victim to the economic hardship that came with these restrictions on movement.
These restrictions, coupled with the rumours circulating regarding Croatian fish, have done
severe damage to his business both currently and potentially in the future. The legality of
the fish rumours will be discussed further below.

I do not believe Fjodor is entitled to take legal action due to his loss of business due to travel
restrictions, nor for the loss of any future earnings due to the fish rumours. Future earnings
cannot be calculated, as well as the fact he is merely indirectly affected by the rumours, in
comparison to Balasz.

Article 34 of the Treaty on the Functioning of the European Union outlines that
“quantitative restrictions on imports and all measures having equivalent effect shall be
prohibited between member states” This article only falls foul if it is an entire member state
banning imports from another member state – a private decision by a company or an
individual is not a breach. Thus, Hungary banning the importation of saltwater fish from
Croatia is a potential breach of article 34, under the principle of mutual recognition,
outlined in the Cassis de Dijon case: “as long as a product is lawfully produced and marketed
in a member state of the EU, it can be marketed in all other member states, unless a
restriction can be justified.” Whether or not a restriction can be justified in this particular
case is doubtful, given the restrictions have been put in place in lieu of uncertified rumours
circulating on social media. As per the Court of Justice in Procureur du Roi v Benoit and
Gustave Dassonville, an MEQR (Measure Equivalent to Quantitative Restriction) was defined
as “all trading rules enacted by member states, which are capable of hindering, directly or
indirectly, actually or potentially, intra-community trade are to be considered as measures
having an effect equivalent to quantitative restrictions.” Dassonville further outlined that
while member states may enact certain restrictions on free trade, such measures should not
be considered to be a hindrance to trade between member states.

Cassis de Dijon outlined that any rules which inhibit trade constitute MEQRs, thus products
that are lawfully manufactured in a member state can be sold in another, unless mandatory
requirements justify restriction – as I have stated before, I do not believe that the
requirements set out by Hungarian public authorities, requiring a special plastic wrapping to
cover Croatian fish, justify such restrictions.

It is worth noting that Hungarian public authorities, whilst not the actual government, are in
breach of article 34 by imposing such restrictions. This is due to the ruling in “Buy Irish”
where, whilst the Irish Goods Council had been set up as a private entity, it still fell under
the restrictions of article 34 due to the Irish Government’s significant influence in the
entity’s formation. Any measure taken by it should be attributed to the State; the same logic
should apply in this scenario.

Article 36 of the TFEU provides that the provisions of Articles 34 and 35 shall not preclude
prohibitions or restrictions on imports, exports or goods in transit justified on grounds of
public morality, public policy or public security or the protection of health and life of
humans. Such prohibitions or restrictions shall not, however, constitute a means of arbitrary
discrimination or a disguised restriction on trade between member states. Granted,
restrictions on trade are justified by means of protection of public health, there are no
reasonable grounds, only here say, to impose MEQRs in this instance. Any exception must
be interpreted strictly, as per Bauhuis – I do not believe this cwill be categorized as an
exception.

It is worth noting that the case of Officer van Justitie v Sandoz outlined that in principle,
restrictions are possible if the health risks in question are uncertain, but proportionality is
necessary. Scientific uncertainty leaves member states with a margin of discretion – it is my
opinion that rumours on social media do not constitute this.

All things considered, I believe that Balasz may take a case to the Court of Justice
demanding a lifting of these restrictions by Hungarian public authorities, as they constitute a
MEQR under article 34 of the TFEU.
QUESTION 3

“Flatten the curve” is a phrase that has resonated with the Irish public over the past year or
so and is one that may haunt us in the post-pandemic years, synonymous with tough times.
The goals of many member state governments was to flatten the curve of coronavirus cases
– that is, avoid an exponential growth of new cases – in order to provide the health services
a chance to better cope with the unforeseen pressure they faced (and are still facing). Most
member states implemented lockdowns in order to flatten the curve and reduce pressure
on health services. Of course, this severely hindered the opportunities of EU citizens to avail
of medical services in other member states. This is a right of an EU citizen as per Article 52
of the TFEU. These rights will be discussed in further detail below.

The rights of EU citizens are guaranteed under Article 20 of the TFEU – “Citizenship of the
Union is hereby established.” These rights came under unprecedented pressure following
the outbreak of the COVID-19 pandemic, due to lockdowns and restriction of free
movement being imposed across many member states. The European Union is mostly
disconnected from its member states health services – member states independently run,
manage and develop their own health services.

At an EU level, cross-border healthcare has been governed since 1971 by ‘Regulation (EEC)
No 1408/71 of the Council of 14 June 1971 on the application of social security schemes to
employed persons and their families moving within the Community’.

Article 56 of the TFEU provides that “restrictions on freedom to provide services within the
Union shall be prohibited in respect of nationals of member states who are established in a
member state other than that of a person for whom the services are intended.”

Services are defined under Article 57 “where they are normally provided for remuneration,
in so far as they are not governed by the provisions relating to freedom of movement for
goods, capital and persons.” Health care services are included in this spectrum; such case
law in this area include those of Kohll and Decker.

Kohll, for example, saw a man from Luxembourg seek dental treatment for his young
daughter in Germany but was denied authorization by the Luxembourg health insurance
fund. The Court of Justice ruled that treatment provided by a healthcare professional was a
service and that rendering payment subject to prior authorization constitutes a barrier to
freedom to provide services.

Decker saw a man purchase a pair of glasses in Belgium, prescribed to him by an

ophthalmologist in Luxembourg. The Luxembourg health insurance fund refused
reimbursement of those glasses as they had been purchased abroad without prior
authorization. The Court of Justice held that this refusal constituted an unjustified barrier to
the free movement of goods.

It is worth noting that where a patient travels abroad for medical treatment, his medical
insurance does not cover the inevitable travel costs included. Health insurance exclusively
covers the healthcare treatment received by the patient.
In conclusion, I agree with the statement that “In its case law on the free movement of
patients, the Court of Justice of the European Union has struck a reasonable balance
between the free movement of service recipients and the interest of the member states to
regulate their domestic health systems.”