Patients' Free Movement Rights and Cross-Border Access to Healthcare
| DOI | 10.1177/1023263X0501200304 |
| Published date | 01 September 2005 |
| Author | Piet Van Nuffel |
| Date | 01 September 2005 |
| Subject Matter | Article |
PATIENTS’ FREE MOVEMENT RIGHTS AND
CROSS-BORDER ACCESS TO HEALTHCARE
PIET VAN NUFFEL*
ABSTRACT
As a result of the case-law of the Court of Justice, national systems of social security and
health care can no longer neglect cross-border aspects as patients start behaving as consumers
looking for the ‘best medical treatment’ at the ‘highest possible rate’ of reimbursement. A
Member State cannot prevent its patients taking advantage of more advanced medical
treatment or better organised care systems in another Member State unless it can justify such
a limitation to patients’ mobility rights on the basis of the need to maintain high-quality
medical resources and a financially stable healthcare system. Authorisation for treatmen t
abroad cannot be refused solely because there are waiting lists on the national territory. The
Court’s case law has prompted the Commission to include provisions on patient mobility in
its proposed ‘Bolkestein’ Directive on services in the internal market. Whatever may be the
fate of that Directive, a legislative codification of the principles outlined in the case law would
certainly enhance transparency and legal certainty for all stakeholders.
§ 1. INTRODUCTION
The organisation of healthcare and social security is a matter for which the Member
States have not transferred powers to the European Union. In the organisation of their
national healthcare systems, the Member States must however take into account basic
principles of Community law, such as the right of patients to free movement within the
Community. This contribution focuses on patients’ mobility rights and on the way the
Court of Justice has attempted to reconcile these rights with the need for Member States
12 MJ 3 (2005) 253
* Legal Secretary at the Court of Justice of the European Communities; Professor of European law at the
Katholieke Universiteit Brussel and visiting professor at the College of Europe (Natolin). The text is an
updated version of a paper presented at the Fifth Workshop of the European Platform for Patients’
Organisations, Science and Industry (EPPOSI) in Berlin, 23 November 2004, and at the European
Conference on Rare Diseases held in Luxembourg on 21-22 June 2005. All views are personal.
254 12 MJ 3 (2005)
to preserve a workable and financially stable healthcare system. It shows how the case law
of the Court of Justice has prompted Member States to reflect on methods of improving
cooperation with a view to a better use of resources and of informing patients on how to
obtain treatment abroad.
§ 2. HEALTHCARE AS A NATIONAL COMPETENCE
The EC Treaty allows the Community to complement the activities of the Member States
with, for example, measures related to the social security and social protection of
workers.
1
However, the Member States insisted on having a clause inserted in the Treaty
according to which the measures taken at the level of the Community ‘shall not affect the
right of Member States to define the fundamental principles of their social security
systems and must not significantly affect the financial equilibrium thereof’.
2
In the same
way, the Treaty gives some competence to adopt measures at Community level with
respect to public health while setting clear limits so as to avoid a situation in which
European incentive measures designed to protect and improve human health would lead
to any harmonisation of national law.
3
The Treaty text clearly states that action of the
Community in the field of public health ‘shall fully respect the responsibilities of the
Member States for the organisation and delivery of health services and medical care’.
4
It is well known that health systems across Europe are facing common challenges as
they adapt to constant development in medical science, an ageing population and rising
public expectations.
5
However, for lack of competence, an overall discussion on
reorganising and improving the Member States’ health care systems can hardly be
undertaken in the framework of the European institutions. The text of the proposed EU
Constitution demonstrates that the cautious attitude of Member States towards the
European Union taking responsibility of these issues is not about to change in the coming
years.
6
Where the Charter of Fundamental Rights, incorporated in Part II of the EU
Piet Van Nuffel
1
EC Treaty, Article 137(1), sub (c).
2
EC Treaty, Article 137(4).
3
EC Treaty, Article 152(4), sub (c).
4
EC Treaty, Article 152(5).
5
See the Commission’s Communication of 20 April 2004 ‘Follow-up to the high level reflection process
on patient mobility and healthcare developments in the European Union’, COM(2004)301 final.
6
See the Treaty establishing a Constitution for Europe, Article III-210(5) (competence as to social policy
is not to affect the right of Member States to define the fundamental principles of their social security
systems and must not significantly affect the financial equilibrium of such systems) and Article III-278(5)
(competence as to public health excludes any harmonisation of the laws and regulations of Member
States) and (6) (emphasises the responsibilities of the Member States for the definition of their health
policy and for the organisation and delivery of health services and medical care, while adding that these
responsibilities ‘include the management of health services and medical care and the allocation of
resources assigned to them’).
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