Abstract
Cross-border healthcare has become a phenomenon of growing public interest in the European Union. On the one hand, patients in need of medical treatment increasingly act as informed consumers claiming their right to choose their own providers even beyond national borders while at the same time maintaining protection within a collective social security framework. The Member States on the other hand have been reluctant to acknowledge such rights because they fear uncontrolled patient tourism across Europe which might undermine the solidarity principles inherent in their national social health protection systems and even increase existing health inequalities.
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Notes
- 1.
Official Journal (OJ) L 88/45 of 4.4.2011. According to Art. 22 the Directive entered into force on 24 April 2011.
- 2.
Council Regulation 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, as modified by numerous Council Regulations, and finally replaced by Regulation (EC) No. 883/2004 of 29 April 2004 on the coordination of social security systems, as amended by Regulation (EC) No. 988/2009 and the implementing Regulation (EC) No. 987/2009 (“modernised coordination”).
- 3.
For the leading cases of the ECJ, see Case C-120/95 Decker of 28 April 1998 (1998) ECR I-1831; Case C-158/96 Kohll of 28 April 1998(1998) ECR I-1931; Case C-368/98 Vanbraekel and others of 12 July 2001 (2001) ECR I-5363; Case C-157/99 Smits and Peerbooms of 12 July 2003 (2001) ECR I-5473; Case C-385/99 Müller-Fauré and van Riet of 13 May 2003 (2003) ECR I-4509; Case C-372/04 Watts of 16 May 2006 (2006) ECR I-4325; Case C-173/09 Elchinov of 5 October 2010 (2010) ECR I-8889.
- 4.
For a general analysis of the legal and political issues linked to cross-border healthcare services, see Wismar et al. 2011.
- 5.
Regulation (EC) No. 883/2004 and Regulation (EC) No. 987/2009 of the European Parliament and of the Council of 16 September 2009 laying down the procedure for implementing Regulation (EC) No. 883/2004 on the coordination of social security systems.
- 6.
See Art. 20 Regulation (EC) No. 833/2004.
- 7.
The ECJ had recognised this exception in the case C-512/08, Commission v. France, judgment of 5 October 2010 (2010) ECR I-8833.
- 8.
Several Member States insisted on including this new reason in particular in view of private providers of health care services.
- 9.
Art. 8 (7) of Directive 2011/24/EU.
- 10.
The possible harm of the Directive (and previous case law) to social solidarity, to equity and community is discussed in particular in view of national healthcare systems.
- 11.
Law No. 595 of 23 October 1985, Decreto Ministeriale No. 851700 of 3 November 1989 which defines “services not available in time” as services which would require a waiting time incompatible with the need for immediate treatment, or if the waiting time would seriously compromise the healthcare status or would preclude the possibility of the treatment; a healthcare service not available in the appropriate form is defined as a service that requires specific professional knowledge or technical procedures or treatment procedures not practiced in Italy, or medical equipment/facilities not present in Italian public or private healthcare structures linked to the public system by contractual arrangements.
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Further Reading
van de Gronden JW, Szyszczak E, Neergaard U, Krajewski M (eds) (2011) Health Care and EU Law. TMC Asser et al., The Hague.
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Hohnerlein, E.M. (2014). Healthcare Without Frontiers and National Control Through Prior Authorisation Schemes in Europe – Legal Framework and Practical Implications. In: Hennion, S., Kaufmann, O. (eds) Unionsbürgerschaft und Patientenfreizügigkeit Citoyenneté Européenne et Libre Circulation des Patients EU Citizenship and Free Movement of Patients. Springer, Berlin, Heidelberg. https://doi.org/10.1007/978-3-642-41311-7_21
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