La portabilità del diritto all’assistenza sanitaria tra deterritorializzazione e solidarietà

The mobility of people is an increasing phenomenon into modern societies, which influences the forms and tools for protecting the fundamental rights. The development of multi-level system of protection and the replacement of citizenship with other forms of belonging, primarily the residence, are the premises of this research. It aims to identify the main forms of portability of fundamental rights, considering the case study “the right to health care”. With the term “portability of right” all cases of patient mobility and healthcare provided abroad are considered, including cross-border health care and patient mobility in Europe. For each of the two systems considered, Italian and European, the current legal framework and case law related applications are further discussed, in order to highlight the level of protection provided, the limits and conditions related to the right to healthcare, the emerging issues. The analysis shows that the portability regime of the right to health care is the result of a balance among different constitutional principles, both in Europe and in Italy, that are directly related to the principles of equal treatment and solidarity. In particular, the principle of solidarity is "urged" by extraterritorial forms of protection in two different ways: in an acquisitive term, as a criterion to extend the existing protection, in a conservative term, as a limit to the expansion of the demands for protection, in order to maintain the sustainability of the social protection system. In both cases, solidarity seems to be the fundamental principle to be used for obtaining a a constitutionally proper balance between the values at stake in European and national level, and to enhance the value of belonging not only in terms of recognition of rights, but also for sharing the related duties.