Blog AnalysisSocial Policy

Why the “cross-border care” proposal is hypocritical

(B2) The directive proposed by the European Commission on July 2 on “patients' rights in cross-border care” has everything to appeal: it is about facilitating better quality of care, by allowing citizens to choose where they want to seek treatment, then be reimbursed by their social security fund.

De very beautiful principles that clash with some solid realities :

1) The “philosophy” which guides the authors of the directive – “the patient has the right to choose where he receives treatment” – is difficult to put into practice in a national budgetary context where on the contrary we seek to limit expenditure and where care costs more and more and is reimbursed less and less.

2) If you want to be reimbursed for care at the national level, it is in fact strictly regulated. The freedom to seek treatment only exists if we have the means to… not get reimbursed.

3) There is already a system at European level which allows a patient to cross borders: it is the social security regulation. Dating from 1971, it has been perfected over the years. And case law has added some additional rights: the principle of covering non-hospital care in particular or the supervision of waiting lists.

4) The Court of Justice never imposed the drafting of a new text, it just interpreted, as it regularly does, the current system considering that it had to respect certain principles – in particular the free movement of services and goods.

Some questions to which the Commission has never answered.

1) Why simply not have the social security regulations been modified, by incorporating case law, or by an interpretative communication?

2) Why, if certain Member States do not comply with the principles of healthcare reimbursement, why not take them to court?

3) What is the benefit for the patient compared to already existing provisions?

This new text therefore retains several drawbacks (already sketched).

1) It does not really clarify the patient's rights. On the contrary, it multiplies the complexities. When faced with care abroad, you have two applicable rules: the “social security” regulation and the future directive, not to mention the case law of the Court of Justice. Read the Court's case law, it is clearer than the text.

2) It is a step backwards from the text already applicable. According to the directive, the patient is not entitled to reimbursement of costs, but only to reimbursement, in short, he advances the costs. However, a day of hospitalization costs at least 1000 euros in France (3 or 4000 euros for intensive care or expensive specialties, source: University Hospital of Lyon). We therefore see that the patient concerned is not the average patient (unless they have… private insurance).

3) It is behind the jurisprudence (from which it nevertheless claims to draw inspiration). This in fact allows the most advantageous reimbursement for the patient: on the basis of the country where he was treated or on the basis of the country where he is insured. The directive only specifies the country of insurance (so much of this saves for the Member State).

4) The choice of instrument – ​​directive – leaves one wondering: by giving States the task of transposing these provisions, we are facing clear divergences (especially since the text is sometimes vague). Which is the opposite of the current social security regulations: which is the same rule for everyone, applicable immediately.

Finally, he does not say a word about Health Services – and the free movement of equipment – ​​which was initially the objective of this text (cf. the Bolkestein directive and the debates on services of general interest)

In reality, this text is designed for those who have the means to navigate complicated legal texts and the means to advance sums of several thousand euros. Not for the average citizen!

To read the proposal, here

What might happen now?
The directive will be discussed, quibbled between Ministers and then with the European Parliament. It will take a few years for that. Then a few years for the transposition. States are going to have their ears pulled, as always when it comes to paying for patient care. And so they will more or less respect the text. The Court of Justice will be seized… Back to square one in ten years!

Nb: If I have one piece of advice to give to law students and lawyers: specialize in the “cross-border care” market, you have an expanding portfolio there 🙂


Nicolas Gros Verheyde

Chief editor of the B2 site. Graduated in European law from the University of Paris I Pantheon Sorbonne and listener to the 65th session of the IHEDN (Institut des Hautes Etudes de la Défense Nationale. Journalist since 1989, founded B2 - Bruxelles2 in 2008. EU/NATO correspondent in Brussels for Sud-Ouest (previously West-France and France-Soir).