Healthcare across EU borders: a safe framework - European Union Committee Contents

CHAPTER 1: Introduction

Cross-border healthcare: Background to the Commission's initiative

1.  On 28 April 1998, the European Court of Justice (ECJ) ruled that EU citizens have a right to obtain planned medical and dental treatment in a Member State other than their home State (see Box 1). Just over ten years later, the European Commission published a proposal for a directive on cross-border healthcare,[1] which aims to clarify and facilitate these rights in relation to cross-border healthcare and to provide some legal certainty. That proposal is the subject of this report.

2.  The Commission's proposal and our report are not about the right to unplanned emergency treatment abroad, which is covered by the European Health Insurance Card.[2] This allows all EU citizens to use the same state-provided healthcare as residents of the country that is being visited. Nor are the proposal and our report about the mobility of healthcare professionals, which is covered by Directive 2005/36/EC on the recognition of professional qualifications.[3]


The key provisions considered by the ECJ

Article 49: The free movement of services

Article 49 of the EC Treaty provides that restrictions on the freedom to provide services across borders within the Community shall be prohibited. This prohibition also applies to restrictions on the receipt of services. Healthcare is a service covered by this Article.

E112: The cross-border application of social security schemes

Article 22 of Regulation 1408/71 of the Council of 14 June 1971 on the cross-border application of social security schemes[4] allows nationals of EU Member States to travel to other Member States for treatment, at the cost of the relevant authority in the home Member State, as long as they have been authorised to do so by that authority. Authorisation may not be refused where the treatment is among the benefits normally provided within the home Member State and where the treatment cannot be provided within the normal time necessary, taking into account the current state of health and probable course of treatment. This is otherwise known as the "undue delay" clause. "E112" refers to the number of the necessary administrative form.

Article 152(5): Competence over national health services

Article 152 of the EC Treaty gives the Community a limited right to act in the field of public health but, according to Article 152(5), Community action should fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care.

3.  The two 1998 cases[5] both related to Luxembourg citizens who had been denied reimbursement for non-hospital medical services provided abroad. In the Kohll case, Mr Kohll's social security institution refused authorisation for his daughter to travel to Germany for dental treatment. The ECJ decided that rules under which reimbursement of the cost of dental treatment provided in another Member State is subject to authorisation constitute a restriction to the freedom to provide services. In the Decker case, Mr Decker was refused reimbursement for spectacles that he had bought across the border in Belgium using a prescription issued in Luxembourg. In that instance, the ECJ decided similarly that the rule constituted a restriction to the free movement of goods. It recognised that such a restriction could in principle be justified if it were necessary to ensure the financial balance of the social security scheme, maintaining a balanced medical and hospital service to all of its insured persons. But in these cases that justification was not established.

4.  Since 1998, the ECJ has delivered further judgments clarifying its reasoning. One such judgment was the Watts case, delivered on 16 May 2006.[6] In 2002, a UK citizen, Mrs Watts, investigated the possibility of hip arthritis treatment abroad on the basis of an E112 form (see Box 1). The request was refused because the projected one-year wait for the operation was within Government targets and therefore could be considered to be "without undue delay" (one of the criteria for an E112 authorisation). Upon appeal, Mrs Watts' case was reviewed and considered to be more urgent, but it was felt that the revised period of three to four months was still "without undue delay". Having failed to secure prior authorisation, Mrs Watts proceeded with treatment in France and continued her case against the local Primary Care Trust.

5.  Ruling on the Watts case, the ECJ considered the application of both the "E112 route" and Article 49 (see Box 1), and of their interaction with Article 152(5) of the EC Treaty. The ECJ emphasised that consideration of undue delay must extend beyond the existence of waiting lists and overall clinical priorities, and must consider the specific clinical needs of the individual patient. It judged that Mrs Watts had faced "undue delay" and that failure to grant prior authorisation contravened both Regulation 1408/71 and Article 49, EC.

6.  The Court also considered reimbursement under the E112 scheme and Article 49. Where an E112 form is used the treatment costs would normally be paid by the social security institution of the host Member State as they would be for one of its nationals, with the social security institution of the home Member State reimbursing the authority of the host Member State direct. Where a national of the host Member State would be required to make a contribution to the cost of the treatment, as is the case in some EU Member States, the home Member State must reimburse any such contribution by a patient from the home Member State, subject to the following condition: the total amount to be paid by the home Member State should not exceed the cost of equivalent treatment in the home Member State or (if lower) the amount invoiced for the treatment by the host Member State. Where Article 49 alone is relied upon the reimbursement to the patient of the cost of the treatment can be limited to the cost of equivalent treatment in the home Member State. In either case ancillary travel and accommodation costs incurred by the patient must be reimbursed by the home Member State if its own national system provides for these costs to be met.

7.  In June 2006, EU Health Ministers agreed a Statement on common values and principles in EU health systems[7] (see Box 2). This political discussion reflected the need to clarify how the health services provided by national health systems should apply the Treaty provisions on the free movement of services. Ministers explicitly called for a legal framework enshrining these values and principles in order to ensure legal certainty, while also respecting the restricted Community competence in relation to health policy. Article 152 of the EC Treaty gives the EU competence to act in the field of public health, but Community action should fully respect the responsibilities of the Member States for the organisation and delivery of health services and medical care. The question of competence is explained and examined in Chapter 3 of our report.


Values and principles of EU health systems

At their June 2006 meeting, the Council of Health Ministers agreed the following set of overarching values that underlie the delivery of health services throughout the EU:

  • Universality (that is, no-one is barred from access to healthcare);
  • Access to good quality care;
  • Equity (equal access for all regardless of ethnicity, gender, age, social status or ability to pay);
  • Solidarity (makes the link between the financing of national health services and accessibility to all).

Ministers noted that different Member States have different approaches to making a practical reality of these values and emphasised that, whilst it is not appropriate to standardise health systems at an EU level, there is immense value in work at a European level on health care that enables the sharing of experiences and information about approaches and good practice.

Ministers agreed the following set of operating principles:

  • Quality;
  • Safety;
  • Care that is based on evidence and ethics;
  • Patient involvement;
  • Redress;
  • Privacy and confidentiality.

8.  On 26 September 2006, the Commission published a consultation paper regarding Community action on health services,[8] laying out the need for action and the possible areas of Community action. We considered the issues raised to be difficult and sensitive and therefore held an oral evidence session with the UK Health Minister, Rosie Winterton MP, on 25 January 2007. The transcript of that session was published as a report on 28 February 2007.[9] In that short report, we indicated that we would look further at these issues upon publication of a legislative proposal by the Commission.

The Commission's proposal

9.  The Commission's proposal is summarised in Box 3. Its elements will be explained in further detail in the respective chapters of this report. In justifying its proposal, the Commission refers extensively to the ECJ jurisprudence[10] and to the June 2006 Council Conclusions (see Box 2). Furthermore, it offers some details on the practical nature of cross-border healthcare. While comprehensive data are not yet available, the Commission estimates in its impact assessment that cross-border healthcare is responsible for around 1% of public expenditure on healthcare.[11] The Commission explains that patients prefer healthcare to be delivered close to home but there are situations when cross-border healthcare can be more appropriate. These include highly specialised care, treatment in border regions and lack of local capacity. Another reason is that those who have moved from one EU country to another in order to work may wish to return to their home country for healthcare, as is demonstrated in the UK by the high number of E112 cases involving maternity care (see pp 31-34). Finally, cheaper healthcare may be an attraction for those patients who may be paying a high proportion, or all, of the costs of their healthcare.

10.  Summarising the issues to be addressed by the proposal, the Commission explains that it is necessary, first, to address how the free movement rights recognised by the ECJ for citizens to have access to healthcare abroad can be applied in practice. The second key issue is to work out how to ensure that, when cross-border healthcare is provided, it is safe and efficient.


Summary of the Commission's proposal[12]

Scope: The directive will apply to all healthcare, regardless of how it is organised, delivered and financed or whether it is public or private. Healthcare itself is not defined in the Directive.

Responsibilities of host Member States: Host Member States are required to ensure that clearly defined quality and safety standards are applied, that healthcare providers make all relevant information available to patients in order that they can make an informed choice, that redress mechanisms are in place, that systems of professional liability apply, that the right to the protection of personal data is respected and that equal treatment between nationals of different Member States is assured.

Use of healthcare in another Member State: Home Member States should ensure that a patient is able to access treatment in another EU Member State on the same basis as that patient would be able to access care at home. Prior authorisation should not be applied to non-hospital care but can be applied to hospital care as long as it is justified and does not constitute a means of arbitrary discrimination.

Information provision: Home Member States must ensure that information on receiving healthcare in another Member State is easily accessible and available to patients on request. As part of that process, National Contact Points must be established in each Member State to provide and disseminate information to patients on their rights.

Member State co-operation: A number of tools are included to enhance
co-operation, including the cross-border recognition of prescriptions, the development of European reference networks of healthcare providers, the interoperability of information and communication technology systems,
co-operation on management of new health technologies, and data collection.

11.  The Commission's proposal is the subject of discussions in Brussels among Member States in the Council of Ministers and in the European Parliament's Environment, Public Health and Food Safety Committee, which is expected to adopt an initial position in March. The co-decision procedure applies so, if the proposal is to become law, both the Council of Ministers (representing the Member States acting by a qualified majority) and the European Parliament will have to reach an agreement. At the time of writing, a likely timetable for agreement was not known.

Our inquiry

12.  Our inquiry had a number of aims. First, we sought to assess the extent to which the draft Directive provides the necessary legal clarification. Second, we examined whether the proposal respects the values and principles adopted by Health Ministers in June 2006. Third, we assessed the extent to which the Commission's proposals are practical, and whether they are likely to provide patients with sufficient guarantees on safety, continuity of care and redress mechanisms. Finally, we sought to examine whether the complexity of the measure is proportionate to the scale of the issue.

13.  The Members of our Social Policy and Consumer Affairs Sub-Committee (Sub-Committee G) who conducted the inquiry are listed in Appendix 1, showing their declared interests.

14.  We are most grateful for the written and oral evidence that we received for our inquiry; the witnesses who provided it are listed in Appendix 2. In particular, we thank those witnesses who gave evidence in person. The Call for Evidence we issued is shown in Appendix 3, and the evidence we received in response is printed in a companion volume to this report.

15.  We make this report to the House for debate.

1   Proposal for a Directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare (COM(2008)414), 02.07.2008  Back

2  Back

3   Directive 2005/36/EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications (OJ L255, 30.9.2005, pp 22-142)  Back

4   Council Regulation (EEC) No 1408/71 of 14 June 1971 on the application of social security schemes to employed persons, to self-employed persons and to members of their families moving within the Community (OJ L 149, 5.7.1971, pp 2-50)  Back

5   Case C-158/96 Kohll vs Union des Caisses des Maladies [1998] ECR I-01931 and Case C-120/95 Decker vs Caisse de maladie des employés privés [1998] ECR I-01831.  Back

6   Case C-372/04 Watts vs Bedford Primary Care Trust [2006] ECR I-4352.  Back

7   Council of the European Union, 9658/06 Back

8   SEC(2006) 1195/4, 26.09.2006 Back

9   Cross Border Health Services in the European Union, European Union Committee, 8th Report (2006-07) (HL 48) Back

10   As outlined above and including also Case C-368/98 Vanbraekel [2001] ECR I-5363; Case C-157/99 Smits and Peerbooms [2001] ECR I-5473; Case C-56/01 Inizan [2003] ECR I-12403; Case C-8/02 Leichtle [2004] ECR I-2641; Case C-385/99 Müller-Fauré and Van Riet [2003] ECR I-4503. Back

11   SEC (2008) 2163, 02.07.2008 (p9) Back

12   (COM(2008)414) Back

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