Conclusions and recommendations
61. Article 49, within which the freedom to receive
healthcare services falls, forms one of the fundamental freedoms
of the Community and is one of the key principles underpinning
the internal market. Article 95 is the legal base for measures
which have as their object the establishment and functioning of
the internal market. Article 152(5) states clearly that Member
States retain full responsibility for the organisation and delivery
of health services and medical care. We agree that Article
95 is the appropriate legal base for the Directive but emphasise
the principle embodied in Article 152(5) and urge the European
institutions to ensure that Member States' responsibility for
the organisation and delivery of health services is fully respected
in the negotiation and implementation of this Directive. Particular
attention must be paid in that regard to the requirements laid
down in Article 5 of the draft Directive.
62. The Commission relies heavily in the draft
Directive on delegation of the finer details to comitology committees.
We caution that delegated legislation runs the risk of creating
rules that go further than intended by legislators, but we recognise
that it is sometimes necessary. Recourse to the comitology procedure
should be restricted to genuine and appropriate questions of detail,
such as the provisions on the mutual recognition of prescriptions.
(See paragraph 161)
63. If Member States are to be able to organise
and deliver their own health services and medical care, it is
critical that they are able to manage the capacity of health services.
The recital in the draft Directive stating that Member States
will have the right to refuse incoming patients is therefore welcome
but would benefit from some strengthening and from clarification
of the term "detriment".
64. The freedom to receive healthcare services
is protected by virtue of Article 49, TEC, and the stated aim
of clarifying the European Court of Justice's rulings can only
be pursued by Community level action. We are therefore content
that the proposal is consistent with the principle of subsidiarity
as long as it does not go beyond the action required to clarify
and to put into effect the principles laid down the by the ECJ.
65. Regulation 1408/71 is closely linked to the
draft Directive but we were concerned to learn that there is some
confusion as to how the two pieces of legislation may interact.
We therefore urge that consideration be given to incorporating
the relevant provisions of Regulation 1408/71 into the text of
the Directive in order to clarify in which circumstances patients
may be able to rely on those provisions rather than those of the
Directive as currently drafted.