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 seduce: it is a question of facilitating better quality of care, by allowing citizens to choose where they want to be treated, then being reimbursed by their social security fund.

De very beautiful principles that clash with some solid realities :

1) The "philosophy" guiding 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, the aim is to limit expenditure and where care is more and more expensive and less and less reimbursed.

2) If you want to be reimbursed for care at the national level, these are indeed strictly supervised. The freedom to seek treatment only exists if you have the means not to be reimbursed.

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

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

A few questions that the Commission has never answered.

1) Why simply did not modify the social security regulations, 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 interest for the patient compared to the already existing provisions?

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

1) It does not really clarify patient rights. On the contrary, it multiplies the complexities. 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 case law of the Court, it is clearer than the text.

2) It is stepping back from the already applicable text. According to the directive, the patient is not entitled to reimbursement of the costs, but only to reimbursement, in other words, he pays the costs in advance. 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 can therefore see that the patient concerned is not the average patient (unless you have... private insurance).

3) It is set back from case law (from which it nevertheless claims to draw inspiration). This 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 that to save for the Member State).

4) The choice of instrument - directive - leaves one wondering: by giving States the task of transposing these provisions, we are heading towards 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, it 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 through 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 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 any advice for law students and lawyers: specialize in the "cross-border care" market, you have an expanding portfolio there 🙂