Organ Transplantation and European Community Law: The Case of Non-Residents

Abstract

Objectives:

The role of the European Union in influencing health care policies in member states is of increasing importance. The Eurotransplant Foundation is an organization which provides donor organs to the most suitable transplant recipients. It covers a region of five countries (Austria, Belgium, Germany, Luxembourg, The Netherlands). As there is a severe shortage of donor organs within its region, registration of so-called non-resident patients on the waiting lists aggravates this shortage. Could European Community law, especially rules on competition, limit Eurotransplant's freedom to introduce a restrictive policy on non-residents? If so, could participating transplant centres or patients initiate legal action against Eurotransplant to stop the execution of such a policy?

Methods:

Quantitative descriptive data on organ donation and use by the Eurotransplant Foundation during 1994 and 1995, by residents and non-residents. Analysis on basis of economic and legal framework.

Results:

Solidarity between potential donors and potential recipients is organized in a different manner in an organization such as Eurotransplant as compared to a national organization under national law. National regulations may introduce a restrictive policy for the acceptance of non-resident patients. Eurotransplant — as a matter of its own policy — has to consider international solidarity. The scope of the non-resident issue is dealt with, and it is explained why it is considered to be a problem. On the basis of a discussion of the economic and the legal framework for a non-resident policy, an answer to the question is suggested.

Conclusion:

It might be possible for Eurotransplant to introduce a restrictive policy on the admission of non-residents without violating the European Community Treaty.

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References

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The Court of Justice of the EC scrutinizes meticulously whether social security institutions really act as an administrative authority or have the possibility to make decisions implying an economic activity: Cases C-159 and 160/91, Poucet and Pistre, [1993] ECR I-637 and Conclusion of the Advocate General G. Tesauro; Case C-244/94, Fédération Française des Sociétés d'Assurance and others v. Ministère de l'Agriculture et de la Pěche, [1995] ECR I-4013.

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Principally, a national legislative or administrative authority may restrict the specific market for OEO services in its territory. Conceivably national authorities might explicitly ‘entrust’ an undertaking ‘with the operation of services of general economic interest’ (Article 90, Section 2, EC Treaty), as seems to be the case for France and the UK. According to the same article, however, these undertakings still ‘shall be subject to the rules contained in this Treaty, in particular to the rules on competition, in so far as the application of such rules does not obstruct the performance, in law or in fact, of the particular tasks assigned to them’.

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