Free movement of patients: Directive 2011/24 on the application of patients' rights in cross-border healthcare

European Journal of Health Law

Volumn 19, Issue 1, 2012, Pages 29-60

  Peeters, Miek ^a  

^a Legal and European Affairs   (Belgium)

Author keywords

cross border healthcare; Decker; free movement; Kohll; patient mobility; patients' rights; quality; safety

Indexed keywords

ARTICLE; EUROPEAN UNION; HEALTH CARE DELIVERY; HUMAN; INTERNATIONAL COOPERATION; LEGAL ASPECT; MEDICAL TOURISM; PATIENT RIGHT;

EUROPEAN UNION; HEALTH SERVICES ACCESSIBILITY; HUMANS; INTERNATIONAL COOPERATION; MEDICAL TOURISM; PATIENT RIGHTS;

EID: 84856444956     PISSN: 09290273     EISSN: 15718093     Source Type: Journal    
DOI: 10.1163/157180912X615158     Document Type: Article

References (30)

1. This contribution is (partly) based on Miek Peeters, "Richtlijn 2011/24 betreffende de toepassing van de rechten van patiënten bij grensoverschrijdende gezondheidszorg: impact op de (Belgische) gezondheidszorg", Tijdschrift Gezondheidsrecht, 2011-2012 (2), in press.
2. Directive 2005/36 /EC of the European Parliament and of the Council of 7 September 2005 on the recognition of professional qualifications, OJ L 255, 30 September 2005, pp. 22-142
3. Regulation 883/2004/EC of the European Parliament and of the Council of 29 April 2004 on the coordination of social security schemes, OJ L 166, 30 April 2004, pp. 1-49.
4. Directive 2011/24/EU of the European Parliament and of the Council of 9 March 2011 on the application of patients' rights in cross-border healthcare, OJ L 088, 4 April 2011, pp. 45-65.
5. Directive 2006/123/EC of the European Parliament and of the Council of 12 December 2006 on services in the internal market, OJ L 376, 27 December 2006, pp. 36-68.
6. Proposal for a directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare of 2 July 2008, COM (2008) 414 final.
7. The Lisbon Treaty reformed the EC Treaty in the spirit of the rejected European Constitution and renamed the EC Treaty, the "Treaty on the functioning of the European Union".
8. For a general overview of this case law see Rita Baeten and Willy Palm, "Healthcare Planning and the EU Internal Market Law" in: Johan Willem van de Gronden, Erika Szyszczak Ulla Neergaard and Markus Krajewski (Eds.), Healthcare and EU Law (The Hague: T.M.C. Asser Press, 2011) pp. 383-404.
9. For services or establishment of natural persons, Directive 2005/36 on the recognition of professional qualifications applies and prevails in relation to the services Directive 2006/123 (Art. 3d Directive 2006/123).
10. The Directive entered into force on 25 April 2011, the 20th day after publication (Article 22). Since 25 April 2011 Member States have 30 months to comply with the Directive (Article 21).
11. The concept "coverage" would be more appropriate than "reimbursement" since it can be used for all types of EU healthcare systems.: for those which reimburse their patients (Bismark-oriented systems) and for those which grant healthcare in natura (Beveridge-oriented systems) as National Health Services. Nevertheless this contribution will use the concept "reimbursement", following the wordings of the Directive.
12. Proposal for a directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare of 2 July 2008, ibid., Art. 4a.
13. For an overview of the relevant case law of the ECJ see Willy Palm and Irene Glinos, "Enabling patient mobility in the EU: between free movement and coordination" in Elias Mossialos et al. (Eds.), Health Systems Governance in Europe: The Role of EU Law and Policy (Cambridge: Cambridge University Press, 2010) pp. 509-561.
14. A.o. cases Smits-Peerbooms C-157/99 and Muller-Fauré C-385/99.
15. Case Muller-Fauré C-385/99, consideration 75.
16. Proposal for a directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare of 2 July 2008, ibid., Art. 8.2.
17. Case C-444/05, Stamatelaki (2007) ECR I-3185.
18. Viz. in the field of Regulation 883/2004, see infra, Section 2.2.6 see a.o. case C-372/04, Watts (2006) ECR I-4325.
19. Given Case C-368/98, Vanbraekel (2001) ECR I-5363, a patient is however, entitled (on request) to the reimbursement tariff of his Member State of affiliation ("competent Member State"), when this points out to be more advantageous for him (however, never exceeding the actual costs); see Art. 26.7 of Regulation 987/2009 (Regulation of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation 883/2004 on the coordination of social security systems, OJL 284, 30 October 2009, pp. 1-42).
20. Regulation 883/2004 uses the concept "competent Member State" whilst Directive 2011/24 uses "Member State of affiliation". For the sake of clarity, this contribution uses consequently the concept of Directive 2011/24 viz. "Member State of affiliation".
21. Proposal for a directive of the European Parliament and of the Council on the application of patients' rights in cross-border healthcare of 2 July 2008, ibid., p. 10.
22. For more information on this topic see H.D.C. Roscam Abbing, "Medical malpractice and disciplinary measures in the European Union" in P. Lens and G. Van Der Wal (eds.), Problem Doctors, a Conspiracy of Silence (Amsterdam: IOS Press, 1997), pp. 247-261.
23. Miek Peeters, Martin McKee and Sherry Merkur, "EU law and Health Professionals" in Elias Mossialos et al. (Eds.), Health Systems Governance in Europe: The Role of EU Law and Policy (Cambridge: University Press, 2010), p. 600.
24. Directive 2001/83/EC of the European Parliament and of the Council of 6 November 2001 on the community code relating to medicinal products for human use, OJ L 311 of 28 November 2001, pp. 67-128.
25. Communication from the Commission: "A Community framework on the application of patients' rights in cross-border healthcare" of 2 July 2008, COM (2008) 415 final, pp. 6-7.
26. Case C-38/03, Commission/Belgium (ECJ 13 January 2005); for a comment (in Dutch) see: Paul Schoukens and Miek Peeters, "Europese goederenmarkt; stok in the wielen van Belgische terugbetalingsregeling voor rolstoelen", Tijdschrift Gezondheidsrecht, 2005-2006 (3) 202-207.
27. See Art. 3g: "healthcare provider" means any natural or legal person or any other entity legally providing healthcare on the territory of a Member State.
28. According to the Commission, patient mobility actually remains limited as it estimates that only around 1% of public healthcare budgets is spent on cross-border healthcare. This share may be a bit higher in border regions, for smaller Member States, for rare diseases and in areas attracting large amounts of tourists though, even in these cases, cross-border healthcare remains limited to a few percent of overall volumes, see Communication from the Commission: "A Community framework on the application of patients' rights in cross-border healthcare", ibid., p. 8.
29. Notice that charging foreign patients a higher price in the procedure of Art. 20.2. Regulation 883/2004 is in any case out of the question. In this procedure the patient is totally equalized with domestic patients, conceiving him "as if he was socially insured in the Member States of treatment", see supra, Section 2.2.6.
30. Cf. opinion of Advocate General Cosmas of 21 September 1999 in case Ferlini C-411/98, consideration nr. 101: "If it were shown that the fees applied to persons affiliated to the national scheme are lower than the cost of the services provided, it could possibly be argued that the application of those fees to Community officials, who are not affiliated to the national scheme, would place a burden on the State budget allocated to financing medical and hospital maternity care."