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The Current Legal Framework on the Right to Seek Health Care Abroad in the European Union
Published online by Cambridge University Press: 27 October 2017
Extract
Cases involving patients such as Mrs Yvonne Watts, who travelled from the UK to France for a hip replacement to avoid a ‘waiting list’ in the UK, relying on rights in European Union (EU) law, attract high levels of media attention. While the vast majority of patients are either unwilling or unable to travel across borders to receive health care, it is clear that some patients are seeking health care abroad. Although data on patient mobility within the EU are significantly limited, nevertheless, a relatively steady, small but not insignificant number of patients are moving across borders within the EU to receive health care. This paper considers the current legal framework on the rights in EU law of those patients who seek health care in another Member State. As the right to seek private health care abroad is (largely) non-contentious, and has been a well-established feature of EU law since at least the mid 1980s, the focus of this paper is on publicly or quasi-publicly funded health care.
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- Copyright © Centre for European Legal Studies, Faculty of Law, University of Cambridge 2007
References
1 Bertinato, L, Busse, R, Fahy, N, Legido-Quigley, H, McKee, M, Palm, W, Passarani, I and Ronfini, F Policy Brief: Cross-border Health Care in Europe (Brussels, World Health Organisation on behalf of the European Observatory on Health Systems and Policies, 2005) 5–6Google Scholar. The most widely used data derive from a study on the flows of financial transfers (rather than actual movement of patients) for cross-border care within the EU: see Hermesse, H et al. ‘Patient Mobility within the European Union’ (1997) 7 (3 Supplement) European Journal of Public Health 4 CrossRefGoogle Scholar, updated to 1998 in Palm, W et al. Implications of Recent Jurisprudence on the Coordination of Health Care Protection Systems, Summary Report produced for DG Employment and Social Affairs (Brussels, AIM, 2000)Google Scholar. These data suggest that expenditure on cross-border health care represents between 0.1% and 0.2% of overall public spending on health care in the EU. However, the data do not take into account waiver agreements between certain Member States (eg UK and Germany). There is also under-reporting of actual cross-border health care (one study ( Rosenmöller, M, McKee, M and Baeten, R (eds) Patient Mobility in the EU: Learning from Experience (Copenhagen, World Health Organisation/ European Observatory on Health Systems and Policies, 2006)Google Scholar, available at http://www.iese.edu/en/ files/6_22160.pdf, 68) reported boxes of unprocessed E111 forms sitting in a Spanish hospital). Moreover, national data do not match the available EU data (Bertinato, L et al ., above, 14–15). The available data seem to show that patient mobility has not in fact increased in the wake of increased public awareness following the high profile Kohll litigation (Bertinato, L et al., above, 13; see European Commission Staff Working Paper.’ Report of the application of internal market rules to health services. Implementations by the Member States of the Court’s jurisprudence’, SEC(2003)900).
2 For further discussion see Hervey, T and McHale, J Health Law and the European Union (Cambridge, CUP, 2004) chs 2 and 4 CrossRefGoogle Scholar.
3 Cases 286/82 and 26/83, Luisi and Carbone [1984] ECR 377.
4 OJ Spec Ed 1971 416.
5 It must be noted, however, that these are not legal terms of art—the terms of the legislation are the ‘competent Member State’ and the ‘Member State of stay’. The ‘competent Member State’ is the Member State in which the ‘competent institution’ is situated. The ‘competent institution’ is the institution with which the person concerned is insured, or the institution from which the person concerned is entitled or would be entitled to benefits if he or a member or members of his family were resident in the territory of the Member State in which the institution is situated, or the institution designated by the competent authority of the Member State concerned (Regulation 1408/71/EEC, Art 1(q) and (o)). ‘Stay’ means temporary residence (Regulation 1408/71/EEC, Art 1 (i)).
6 Regulation 1408/71/EEC is due to be repealed and replaced by Regulation 883/2004/ EC, OJ 2004 L 166/1. For a corrected version of the text see OJ 2004 L 200/1. Art 91 of the Regulation provides that the existing law will apply until the entry into force of the implementing regulation. The Commission has put forward a proposal for an implementing measure (COM(2006)16). This was discussed at Council in Dec 2006 and again at Council in May 2007. This paper therefore refers to the current law, that of Regulation 1408/71/EEC, although references to Regulation 883/2004/EC may be found in the appropriate footnotes.
7 The contingencies covered by the Regulation are (a) sickness and maternity benefits; (b) invalidity benefits, including those intended for the maintenance or improvement of earning capacity; (c) old-age benefits; (d) survivors’ benefits; (e) benefits in respect of accidents at work and occupational diseases; (f) death grants; (g) unemployment benefits; (h) family benefits. (Art 4(1); this will be found in Regulation 883/2004/EC, Art 3, which covers (a) sickness benefits; (b) maternity and equivalent paternity benefits; (c) invalidity benefits; (d) old-age benefits; (e) survivors’ benefits; (f) benefits in respect of accidents at work and occupational diseases; (g) death grants; (h) unemployment benefits; (i) pre-retirement benefits; (j) family benefits).
8 The Regulation applies to ‘employed or self-employed persons and to students who are or have been subject to the legislation of one or more Member States and who are nationals of one of the Member States or who are stateless persons or refugees residing within the territory of one of the Member States, as well as to the members of their families and their survivors’ and to ‘survivors, irrespective of their nationality, of such persons’ (Art 2(1) and (2); this will be found in Regulation 883/2004/EC, Art 2). An ‘employed or self employed person’ is defined in Art 1(a) as a person who is insured, either compulsorily or on a voluntary or optional basis, for one or more of the contingencies covered by the branches of a social security scheme dealt with in the Regulation. Regulation 883/2004/EC consolidates the existing position with a more simply worded Art 2 which provides that ‘(1) This Regulation shall apply to nationals of a Member State, stateless persons and refugees residing in a Member State who are or have been subject to the legislation of one or more Member States, as well as to the members of their families and to their survivors. (2) It shall also apply to the survivors of persons who have been subject to the legislation of one or more Member States, irrespective of the nationality of such persons, where their survivors are nationals of a Member State or stateless persons or refugees residing in one of the Member States’.
9 Regulation 1408/71/EEC, Art 22(1); this will be found in Regulation 883/2004/EC, Art 19.
10 Regulation 1408/71/EEC, Art 22(1)(c); this will be found in Regulation 883/2004/EC, Art 20.
11 Of the EU-15, Luxembourg had by far the highest expenditure on patients receiving health care services in other Member States (Palm, W et al., above n 1). Some small countries, including Malta (Rosenmöller, M, McKee, M and Baeten, R, above n 1, 118–36), Cyprus and Iceland, have long traditions of sending patients abroad for highly specialised treatment such as cardiac surgery and bone marrow, liver, heart and lung transplants. Among the EU-15, France ‘imports’ the most patients (Palm, W et al. (2000), above n 1). Both the Netherlands and the UK have looked to Belgium to address waiting times for some treatments (Rosenmöller, M, McKee, M and Baeten, R, above n 1, 97–118). Several Member States that were part of the 2004 accession round, including Hungary and the Czech Republic (Rosenmöller, M, McKee, M and Baeten, R, above n 1, 152–4) have seen their lower costs as an advantage in attracting patients from western Member States.
12 A Commission committee, made up of senior officials from Member States, chaired by the Director General of DG SANCO. Its establishment was endorsed by Council in June 2004. Its aim is to ‘improve top level coordination among EU members on a broad range of health issues’ (Letter from Robert Madelin, DG SANCO, 4 May 2004, Ref HLG/2004/1).
13 See Hervey, T ‘New Governance Responses to Health Care Migration in the EU: the EU Guidelines on Block Purchasing’ forthcoming (2007) 14 Maastricht Journal of European and Comparative Law CrossRefGoogle Scholar.
14 Case 117/77, Pierek (No 1) [1978] ECR 825; Case 182/78, Pierek (No 2) [1979] ECR 1977.
15 Regulation 1408/71/EEC, Art 22(2); a similar provision will be found in Regulation 883/2004/EC, Art 20(2).
16 Art 230 EC provides that the ECJ shall review the legality of acts of the institutions (including Regulations) on grounds, inter alia, of infringement of the Treaty.
17 The duty to do so is implicit in Arts 5 and 7 EC, which constrain the powers of the legislative institutions of the EU, and in Art 220 EC, which provides that the ECJ is under a duty to ensure that in the interpretation of the Treaty (and implicitly, acts adopted on the basis of the Treaty), ‘the law is observed’, and Art 234 EC, which gives the Court jurisdiction in acts concerning interpretation of acts of EU law.
18 Case C–368/98, Vanbraekel [2001] ECR I–5363, para 32.
19 Case C–56/01, Inizan [2003] ECR I–12403, para 21.
20 Ibid.
21 Case 263/86, Belgian State v Humbel [1988] ECR 5365, para 17.
22 Cases 286/82 and 26/83, Luisi and Carbone, above n 3, para 16.
23 Case C–159/90, SPUC v Grogan. [1991] ECR I–4685.
24 Case 352/85, Bond van Adverteerders [1988] ECR 2124.
25 Case C–158/96, Kohll v Union des Caisses de Maladie [1998] ECR I–1931.
26 Ibid.
27 Ibid, para 29.
28 Case C–157/99, Geraets-Smits and Peerbooms [2001] ECR I–5473, paras 55–58; see also Case C–368/98 Vanbraekel, above n 18, para 42; Case C–385/99, Müller-Fauré/Van Riet [2003] ECR I–4509; Case C–8/02, Leichtle [2004] ECR I–2641.
29 Case 263/86, Belgian State v Humbel, above n 21; see also the Opinion of the AG in Case 293/83, Gravier [1985] ECR 593.
30 Case 279/80, Webb [1981] ECR 3305.
31 See Case C–109/93, Wirth [1993] ECR I–6447.
32 See Case C–158/96, Kohll, above n 25, para 20.
33 Ibid,
34 Case C-368/86 Vanbraekel, above n 18; Case C–157/99, Geraets-Smits and Peerbooms, above n 28.
35 Case C–372/04, Watts [2006] ECR I–4325.
36 Ibid, para 88.
37 See, eg, AG Ruiz-Jarabo Colomer in Case C–157/99, Geraets-Smits and Peerbooms, above n 28, para 46; AG Geelhoed in Case C–372/04 Watts, above n 35, para 21.
38 See in particular Case 263/86, Belgian State v Humbel, above n 21.
39 The national court in Watts asked ‘whether hospital treatment provided by the [UK] NHS constitutes services within the meaning of Article 49 EC’.
40 Case C–372/04, Watts, above n 35, para 91.
41 This sensitivity tends to be in the operation of the ‘justification’ stage of its reasoning (see below) in the case law so far, rather than at the stage of determining whether, in principle, the matter falls within Art 49 EC.
42 See Case 186/87, Cowan v Le Trésor Public [1989] ECR 195.
43 See ibid, paras 15–17; Case C–76/90, Säger v Dennemeyer [1991] ECR I–4221, para 12; Case C–43/93, Vander Elst [1994] ECR I–3803, para 14; Case C–272/94, Guiot and Climatec [1996] ECR I–1905, para 10.
44 Above n 3.
45 Case C–381/93, Commission v France [1984] ECR I–5145, para 17; Case C–158/96, Kohll, above n 25, para 33; Case C–368/98, Vanbraekel, above n 18, para 45; Case C–157/99, Geraets-Smits/Peerbooms, above n 28, para 61; Case C–372/04, Watts, above n 35, para 94.
46 Case C–8/02, Leichtle, above n 28, para 30; Case C–372/04, Watts above n 35, paras 95–98.
47 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, paras 60–69; Case C–385/99, Müller-Fauré/Van Riet, above n 28, paras 37–44.
48 Case C-368/98 Vanbraekel, above n 18, para 45.
49 Case C–8/02, Leichtle, above n 28.
50 Ibid, para 41.
51 Ibid, para 33.
52 Case C–372/04, Watts, above n 35, paras 95–96.
53 Ibid, para 94.
54 See Arts 30, 39(3) and (4), 46(1), 55, 58 EC; and the jurisprudence of the ECJ on ‘mandatory requirements’ (see, eg, Case 120/78, ‘Cassis de Dijon’ [1979] ECR 649) or ‘objective public interests’ (see, eg, Case 33/74, Van Binsbergen [1974] ECR 1299; Case 71/76, Thieffry [1977] ECR 765; Case C–384/93, Alpine Investments [1995] ECR I–1141; Case C–55/94, Gebhard [1995] ECR I–4165). For further discussion see Scott, J ‘Mandatory or Imperative Requirements in the EU and the WTO’ in Barnard, C and Scott, J (eds) The Law of the Single European Market: Unpacking the Premises (Oxford, Hart, 2002)Google Scholar.
55 Case 33/74, Van Binsbergen [1974] ECR 1299.
56 See Case C–55/94, Gebhard [1995] ECR I–4165, para 37; Case 220/83, Commission v France (Insurance Services) [1986] ECR 3663; Case 252/83, Commission v Denmark [1986] ECR 3713; Case 205/84, Commission v Germany [1986] ECR 3755; Case 206/84, Commission v Ireland [1986] ECR 3817.
57 See, eg, Case C–272/94, Guiot and Climatec, above n 43.
58 See, eg, Case 427/85, Commission v Germany (Lawyers Services) [1988] ECR 1123, para 26.
59 Case 33/74, Van Binsbergen, above n 55, para 14; Case 292/86, Gulling [1988] ECR 11, para 29, Case C–106/91, Ramrath [1992] ECR I–3351.
60 Case C–272/94, Guiot and Climatec. above n 43.
61 Case C–120/95, Decker [1998] ECR I–1831; Case C–158/96, Kohll, above n 25; Case C–157/99, Geraets-Smits/Peerbooms, above n 28; Case C-368/98 Vanbraekel, above n 18; Case C–385/99, Müller-Fauré/Van Riet, above n 28, Case C–8/01, Leichtle, above n 28; Case C–372/04, Watts, above n 35, para 145.
62 Case 205/84, Commission v Germany, above n 56, para 30; Case C–288/89, Gouda [1991] ECR I–4007, para 27; Case C–76/90, Säger [1991] ECR I–4221, para 15; Case C–275/92, Schindler [1994] ECR I–1039, para 58.
63 Cases 286/82 and 26/83, Luisi and Carbone, above n 3.
64 Case C–368/98, Vanbraekal, above n 18.
65 Regulation 1408/71/EEC, Art 36; this will be found in Regulation 883/2004/EC, Art 20; cash benefits will be covered by Art 21.
66 See Case C–145/03, Keller [2005] ECR I–2529, paras 50 and 53.
67 Ibid, para 66.
68 Ibid, para 69.
69 Case C–326/00, IKA [2003] ECR I–1703 and Case C–156/01, ANOZ [2003] ECR I–7045.
70 See Regulation 631/2004/EC, OJ 2004 L 100/1.
71 Regulation 1408/71/EEC, Art 22(1)(a); this will be found in Regulation 883/2004/EC, Art 19(1); and Regulation 1408/71/EEC, Art 31; this will be found in Regulation 883/2004/ EC, Art 27(1), which applies Art 19 mutatis mutandis to ‘a person receiving a pension or pensions under the legislation of one or more Member States and entitled to benefits in kind under the legislation of one of the Member States which provide his/her pension(s) or to the members of his/her family who are staying in a Member State other than the one in which they reside’.
72 Case C–372/04, Watts, above n 35, paras 62 and 68.
73 Ibid, para 63.
74 Ibid, para 67.
75 Ibid, para 68.
76 Ibid, para 70.
77 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, para 103; Case C–385/99, Müller-Fauré/Van Riet, above n 28, para 89, Case C–56/01, Inizan, above n 19, para 45.
78 Case C–372/04 Watts, above n 35, para 54.
79 Case C–368/98 Vanbraekel above n 18, para 32.
80 Case C–56/01, Inizan above n 19, para 21.
81 See Opinion of AG Geelhoed, Case C–372/04, Watts, above n 35, para 101.
82 Case C–56/01, Inizan, above n 19, paras 45–46.
83 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, paras 103–104.
84 Case C–385/99, Müller-Fauré/Van Riet, above n 35, paras 89–90.
85 Case C–372/04, Watts, above n 35, paras 59, 60, 62, 63 and 64.
86 Ibid, para 65.
87 See Case C–120/95, Decker, above n 61; Case C–158/96, Kohll, above n 25; Case C–157/99, Geraets-Smits/Peerbooms, above n 28; Case C-368/86 Vanbraekel, above n 18; Case C–385/99, Müller-Fauré/Van Riet above n 28; Case C–8/02, Leichtle, above n 28; Case C–372/04, Watts, above n 35.
88 Ibid, paras 103–105, referring to Case C–158/96, Kohll, above n 25, paras 41, 50 and 51; Case C–157/99, Geraets-Smits/Peerbooms, above n 28, paras 72, 73 and 74; Case C–385/99, Müller-Fauré/Van Riet, above n 28, paras 67 and 73.
89 Case C–372/04, Watts, above n 35, para 106.
90 Ibid, para 110.
91 See Case 26/62, Van Gend en Loos [1963] ECR 1.
92 Case C–158/96, Kohll, above n 25.
93 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, paras 67–69.
94 Ibid, para 81; Case C–385/99, Müller-Fauré/Van Riet, above n 28, para 82.
95 See ibid, paras 93–98.
96 Case C-368/86 Vanbraekel, above n 18.
97 Case C–385/99, Müller-Fauré/Van Riet, above n 28.
98 This is discussed in full in the Opinion of AG Geelhoed, Case C–372/04, Watts, above n 35, paras 106–119.
99 Case C–368/98 Vanbraekal, above n 18.
100 SI 1989 No. 306 as amended by SI 1991/438, SI 1994/1535, SI 2000/602, SI 2000/909 and SI2004/614.
101 Opinion of AG Geelhoed, Case C–372/04, Watts, above n 35, para 117.
102 Case C–8/01, Leichtle, above n 28, paras 36 and 42.
103 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, para 94.
104 For examples of difference in healthcare practice between Member States of the EU see Helman, CG Culture, Health and Illness (Oxford, Butterworth-Heinemann, 2000) 60, 180Google Scholar.
105 Case C–368/98 Vanbraekel, above n 18, para 34.
106 Case C–8/01, Leichtle, above n 28, paras 55–59.
107 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, para 90; Case C–385/99, Müller-Fauré/Van Riet, above n 28, para 85; Case C–56/01, Inizan, above n 19, para 48.
108 Case C–372/04, Watts, above n 35, para 115.
109 Ibid, paras 114–117.
110 Ibid, para 119.
111 Ibid, para 118.
112 Case C–157/99, Geraets-Smits/Peerbooms, above n 28, para 103; Case C–385/99, Müller-Fauré/Van Riet, above n 28, para 89, Case C–56/01, Inizan, above n 19, para 45.
113 Case C–372/04, Watts, above n 35, para 120.
114 See, eg, Baeten, R ‘European Integration and National Healthcare Systems: A Challenge for Social Policy’ (2001) 8 (November) infose 1 Google Scholar; Jorens, Y ‘The Right to Healthcare Across Borders’ in Baeten, R, McKee, M and Mossialos, E (eds) The Impact of EU Law on Health Care Systems (Brussels, PIE Pieter Lang, 2003)Google Scholar.
115 See Coheur, A ‘Integrating Care in the Border Regions’ (2001) 7 (4) eurohealth 10 Google Scholar; Busse, R ‘Border-crossing Patients in the EU’ (2002) 8 (4) eurohealth 19, 20–1Google Scholar. A number of arrangements to share health care provision border areas have been established, such as in Valka (Latvia)/Valga (Estonia), Gorizia (Italy)/Nova Gorica (Slovenia), and the shared hospital in Cerdania (France)/Cerdanya (Spain), a sparsely populated area of the Pyrenees. See Bertinato, L et al., above n 1; Rosenmöller, M, McKee, M and Baeten, R (2006), above n 1.
116 The High Level Group on Health Services and Medical Care has adopted EU Guidelines for Purchase of Treatment Abroad, 2005. See above n 12.
117 See Lowson, K, West, P, Chaplin, S and O’Reilly, J York Health Economic Consortium Document Final Report; Evaluation of Treating Patients Overseas (York, YHEC, 2002)Google Scholar. Both the Netherlands and the UK have looked to Belgium to address waiting times for some treatments: see Rosenmöller, M, McKee, M and Baeten, R (2006), above n 1, 97–118. Several new Member States, including Hungary and the Czech Republic, have seen their lower costs as an advantage in attracting patients from western Member States: see Rosenmöller, M, McKee, M and Baeten, R (2000), above n 1, 152–4.
118 For instance, the use by the Irish Western Board of a national fund to purchase treatment in hospitals at home and abroad has been criticised by medical professionals and politicians in Ireland. Their view is that the fund’s resources would be better used in public hospitals in Ireland, in particular through keeping wards open and recruiting more nursing staff. See Donnellan, E ‘Medical Fund for treatment abroad is ‘a nonsense’ says consultant’ Irish Times, 3 Feb 2003.