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Cross-border healthcare in the EU: Interaction between Directive 2011/24/EU and the Regulations on social security coordination

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Abstract

Directive 2011/24/EU does not aim to promote cross-border healthcare in the EU, but aims to ensure the freedom to provide this service. However, its national implementation is providing visibility to the different reimbursement options available, including those envisaged under the coordination Regulations. When reimbursement is possible under both routes, the Directive route only applies if the patients request it explicitly. The assumption that the Regulations are always the better option is not reliable. This article identifies the situations where the Directive route can be more beneficial for the patient; to a large extent that will depend on the national implementation options adopted. Interaction is a difficult issue insofar as this implies comparing two instruments, each with a different logic which provide very different coverage on the basis of not easily discernible assumptions.

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Notes

  1. The version in force is Regulation (EC) No 883/2004 of the European Parliament and of the Council of 29 April 2004 on the coordination of social security systems, OJ L 166, 30 April 2004 and the implementing Regulation (EC) No 987/2009, OJ L 284, 30 October 2009. Both of them were last amended by Regulation (EU) No 517/2013, OJ L 158, 10 June 2013.

  2. OJ L 88/45, 4 April 2011.

  3. These instruments do not provide a full picture of patients’ mobility within the EU. There are also parallel schemes, such as bilateral agreements between Member States and plans for organising the transfer of patients in border regions. From a national point of view, some Member States have legislation providing for reimbursement or protection of their insurees when they need healthcare abroad in specific circumstances.

  4. See Chaps. 1 and 2 of Title 3 of Regulation 883/2004/EC. The 2nd Chapter deals with sickness social security benefits in kind in the case of accidents at work or occupational diseases. It should be remembered that social and medical assistance are excluded from the material scope of application of Regulation 883/2004/EC (Art. 3(5)). The Administrative Commission for the Coordination of Social Security Systems has passed 10 Decisions and 2 Recommendations on this specific subject, which can be found in http://ec.europa.eu/social/main.jsp?catId=868. The most recent interpretations by the CJEU should also be considered.

  5. Article 48 of the TFEU, OJ C 83/01, 3 March 2010.

  6. With the exception of the so-called Vanbraekel complement (Art. 26(7) of Regulation 987/2009/EC).

  7. See Article 114 of the TFEU. The Directive also mentions Article 168 of TFEU, but this dual legal basis might be considered only a political compromise. Especially if one takes into consideration that Article 35 of the EU Charter of Fundamental Rights ensures the same objectives and is fully applicable in this case.

  8. This article focuses on the junction between both instruments and the reimbursement of healthcare costs; it does not analyse the rules related to healthcare cooperation included in Chapter IV of Directive 2011/24/EU.

  9. Recital 10 of Directive 2011/24/EU.

  10. Case C-120/95 Decker [1998] ECR I-01831.

  11. Case C-158/96 Kohll [1998] ECR I-01931.

  12. It has been considered that this case law is connected to a 1984 judgment on the exportation of foreign currency, namely C-286/82 and 26/83 Luisi and Carbone [1984] ECR 377. The following judgments also merit mention: Case C-368/98 Vanbraekel [2001] ECR I-05363; Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-05473; Case C-326/00 IKA v. Ioannidis [2003] ECR I-01703; Case C-385/99 Müller-Fauré and van Riet [2003] ECR I-04509; Case C-156/01 van der Duin [2003] ECR I-07045; Case C-56/01 Inizan [2003] ECR I-12403; Case C-8/02 Leichtle [2004] ECR I-02641; Case C-372/04 Watts [2006] ECR I-04325; Case C-444/05 Stamatelaki [2007] ECR I-03185; Case C-211/08 Commission v. Spain [2010] ECR I-05267; Case C-512/08 Commission v. France [2010] ECR I-08833; and Case C-173/09 Elchinov [2010] ECR I-08889. On this case law see García de Cortázar [7], p. 329; Hierro [9]; Palm [11], p. 516; Carrascosa [1], p. 43; and Carrascosa [4], p. 45.

  13. About this topic see Fillon [5], p. 217; Fotinopoulou [6], p. 331; Grossetête [8], pp. 491–493; and Palm [11], p. 521.

  14. Carrascosa [2], p. 570. Idea shared also by Trillo [14], p. 152 and Strban [13], p. 397.

  15. Case C-372/04 Watts [2006] ECR I-04325.

  16. In fact under the new simplified Regulation “the revision of the chapter on sickness and maternity benefits was already concluded under the Danish Presidency in the second half of 2002”. Palm [11], p. 521. Even if Regulation 883/2004/EC was passed in 2004 it is well known that it was on ice until May 2010, so there was plenty of time to try to deal again with the issue.

  17. The main obstacle could have been the material scope of the Regulations, at least from the point of view of National Health Systems, which tend to link the right to social security with public providers. But it should be borne in mind that the Directive also links social security and private providers, as it is only applicable to patients insured in a social security system according to its public tariffs and its basket of services.

  18. Before that, the Commission tried unsuccessfully to include the jurisprudence on reimbursement in the general Directive on services in the internal market. The opinion in the European Parliament and Council was that healthcare is part of the social protection and that it is a service of general interest, so it deserved a legal instrument of its own.

  19. See SEC (2006) 1195/4.

  20. Administrative coordination is problematic. Having two instruments means dealing with two different Directorates General at EU level and often with two different Ministries at a Member State level. In addition, for each MS several healthcare systems, insurers, and providers may need to be addressed. In Spain, for instance, there are 17 regional healthcare systems. Finally there are 28 National Contact Points who need to exchange information and, do not forget, there are also language barriers.

  21. Even another DG SANCO Regulation on reimbursement of cross-border healthcare would have been a better idea. Healthcare cooperation—the entirety of Chapter IV of the Directive—could have been the subject of a DG SANCO Directive of its own.

  22. Twelve MS received a “reasoned opinion” identifying significant infringements, in particular Austria, Belgium, Bulgaria, Germany, Estonia, Greece, Finland, France, Ireland, Luxembourg, Poland and the United Kingdom. France, Ireland and Luxembourg were the last MS to notify the EU of full implementation and as of August 2014 only Poland was yet to send such notification. July infringements package: main decisions, European Commission MEMO/14/470, 10th July 2014, p. 5.

  23. In some cases, for instance, “certain provisions of the Directive still appear to be missing”, the rules set out had not been clearly implemented or National Contact Points fail to provide understandable invoices. July infringements package: main decisions, European Commission MEMO/14/470, 10th July 2014, p. 5.

  24. At present, there is no reliable data on the impact of the Directive, either alone or in conjunction with the Regulations. Report from the Commission to the Council and the European Parliament COM (2014) 44 final, 3rd February 2014, p. 3.

  25. Thus totally diverging from the objectives of clarification and simplification which constituted the aims the Directive. Fillon [5], p. 218.

  26. Strban [13], p. 406.

  27. Strban [13], p. 397.

  28. Although they still need to be affluent enough to pay the healthcare bill upfront.

  29. Recital 39 of Directive 2011/24/EU.

  30. This estimation includes cross-border healthcare which patients had not planned in advance (emergency care for tourists). This means that, at present, planned cross-border healthcare accounts for less than 1 % of the expenditure. Q&A: Patients’ Rights in Cross-Border Healthcare, European Commission MEMO/11/32, 22-10-2013, p. 1.

  31. Scheduled care under the Regulations has rarely been used. Spain issued 18 S2 forms per million inhabitants in 2008. That is 800 forms in an entire year. Numbers are not very impressive in other Member States apart from Luxembourg. Austria issued 353 per million inhabitants, less than 3000 forms in a year. That is the second highest number across the Member States of the EU. Report from the Commission to the Council and the European Parliament COM (2014) 44 final, 3rd February 2014, p. 13.

    On the other hand, the European Healthcare Insurance Card, which provides access to unplanned healthcare, is quite popular all over Europe. Millions of them have been issued to tourists, students and business travellers.

  32. Misgivings about its legal enforceability can rise as far as preambles only clarify the intention of the legislator and facilitate the interpretation of the articles.

  33. Article 2(m) of Directive 2011/24/EU. In this same sense but regarding unplanned healthcare, the first sentence of Recital 28 of Directive 2011/24/EU could apply.

  34. Recital 28 of Directive 2011/24/EU.

  35. Case C-368/98 Vanbraekel [2001] ECR I-05363, paragraphs 37 to 53 and Case C-372/04 Watts [2006] ECR I-04325, paragraph 48.

  36. Recital 31 of Directive 2011/24/EU.

  37. Article 8(3) of Directive 2011/24/EU.

  38. The UK National Health Service is a good example. See the Funding for Treatment in the European Economic Area (EEA) Application Form available at http://www.nhs.uk/NHSEngland/Healthcareabroad/plannedtreatment/Documents/EEA%20Application%20form%20v9.pdf.

  39. In Spain, there are two different responsible institutions. The Regional Health Service authorises reimbursement under the Directive route, while the Social Security Institution authorises reimbursement under the Regulation, although following a prior binding consultation with the Regional Health Service.

  40. Consider this very simple example. A patient residing and insured in France travels to Spain. During his trip, he needs a tooth filling, a treatment included in the French basket of services. His only option is to attend a private dentist and ask for reimbursement under the Directive as such treatment is not provided by the Spanish national health system (which only provides basic dental healthcare).

  41. Stakeholders consulted stated that it is not expected that patients from other MS will increase their use of Spanish public healthcare, with the exception of highly specialized care.

  42. Article 1(4) of Directive 2011/24/EU.

  43. The Directive applies to all third country nationals who are entitled to healthcare benefits in Denmark. Said beneficiaries are not covered by the Regulations as Denmark is not bound by Regulation 1231/2010/EU, OJ L 344, 24 December 2010. For them, Denmark cannot be a competent MS under the Regulations but can be a MS of affiliation under the Directive. It should be noted that the right to cross-border healthcare does not in itself entitle a patient to enter, stay or reside in a MS (Recital 18 of the Directive 2011/24/EU). The Directive does not bypass national laws on immigration.

  44. The Directive does not apply to them yet. The same applies to a person insured in a MS who travels to any of these countries.

  45. In the case of healthcare provided in a third country, the “External Dimension of EU Social Security Coordination” applies (see European Commission COM (2012) 153, 30 March 2012). As the CJEU established in Case C-55/00 Gottardo [2002] ECR I-00413, when a MS concludes a bilateral convention on social security with a third country, the fundamental principle of equal treatment requires that the MS grants all EU nationals the advantages its own nationals enjoy under that convention unless it can provide objective justification for refusing to do so. See also the Recommendation S2 of the Administrative Commission for the Coordination of Social Security Systems (OJ C 046, 18 February 2014).

  46. The Case C-562/10 Commission v Germany, judgment of 12 July 2012 (not yet reported) states in its paragraph 48 that long-term care benefits fall inside the scope of the freedom to provide services guaranteed by the TFEU Treaty.

  47. In Case C-208/07 von Chamier-Glisczinski [2009] ECR I-06095, reimbursement was refused, arguing that there had been a change of residence and long-term care was not part of the basket of services of the Member State of treatment, a reasonable argument. Case C-388/09 da Silva Martins [2011] ECR I-05737, in paragraphs 47 and 48, points out that long-term care benefits are, in principle, not intended to be paid on a short-term basis.

  48. See Article 1(3)(b) of Directive 2011/24/EU. On standards of quality and safety of human organs intended for transplantation see Directive 2010/53/EU, OJ L 207, 7 July 2010.

  49. See Article 1(3)(c) of Directive 2011/24/EU on public vaccination programmes against infectious diseases which are exclusively aimed at protecting the health of the population on the territory of a MS and which are subject to specific planning and implementation measures.

  50. For example, if a person insured in Germany resides in another MS, he will have access to healthcare in that MS under the Regulations in the same conditions as national insured persons. Germany will issue a S1 form and will reimburse the MS of residence for healthcare costs on the basis of invoices (real costs) or by means of a fixed annual amount. But this person will not be entitled to the reimbursement under the Directive of any healthcare expenditure incurred in the MS of residence. He may be entitled to reimbursement under the Directive if he travels to a third MS and receives there healthcare.

  51. Case C-466/04 Acereda Herrera [2006] ECR I-05341, paragraph 44. The Court of Justice has always repeated that their protective legal basis prevents the loss of national rights. In other words, the objective of the Regulations is to give more rights: to favour the position of a person “in relation to the situation which would arise for him or her from the exclusive application of national law”. This mandatory principle, also known as the Petroni principle, is a very useful tool for the interpretation of the Regulations and has been followed in many cases, such as Case C-352/06 Bosmann [2008] ECR I-03827.

  52. The MS listed in Annex III of the Regulation 987/2009/EC (Ireland, Spain, Italy, Malta, The Netherlands, Portugal, Finland, Sweden and United Kingdom) calculate the average expenditure of patients per group of age and are reimbursed a lump-sum for the healthcare costs of residents insured in another MS. The rest of MS are paid on the basis of real costs, producing invoices for the actual healthcare expenditure of the resident insured in another MS. In this latter case, the competent MS remains being the competent authorising MS.

  53. For instance, a person insured in the UK who resides in Spain. In this case the UK is obliged to pay a lump sum to compensate the healthcare expenditure. The Regulations consider that said expenditure should include planned healthcare, so Spain becomes the competent authorising MS not only issuing the S2 form but also reimbursing under the Directive.

  54. As you can see, the MS of affiliation depends on the MS that the pensioner decides to reside. If a person insured in the UK decides to reside in Spain (fixed amounts), this latter will be the MS of affiliation insofar as Spain issues the S2 forms for planned healthcare under the Regulations. But if the same person decides to reside in Greece (real costs) the MS of affiliation would be the competent MS, as the UK would issue the S2 forms.

  55. The problem with this criterion is that social security systems can hardly determine and control the intentions of patients; in many cases it is simply impossible. Besides, as it will be shown, unplanned healthcare could have some advantages over planned healthcare. So patients under the Regulations could be tempted to take a short trip and pretend to require an unforeseen treatment instead of embarking on a less attractive administrative process that requires their procedure to be authorized, at least under the Regulations. For more on this issue see Decision S3 of the Administrative Commission for the Coordination of Social Security Systems (OJ C 106, pp. 40–41, 24 March 2010). Carrascosa [4], p. 328; and Strban [13], p. 394.

  56. Case C-90/97 Swaddling [1999] ECR I-01075, paragraph 28.

  57. Directive 2004/38/EC, OJ L 158, 309 April 2004.

  58. Case C-589/10 Wencel, judgment of 16 May 2013 (not yet reported), paragraphs 45 and 46.

  59. Article 1(j) of Regulation 883/2004/EC. Article 1(k) of Regulation 883/2004/EC defines “stay” as “temporary residence”, which does not necessarily mean of short duration.

  60. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported), paragraph 44; Case C-13/73 Angenieux v. Hakenberg [1973] ECR 00935, paragraph 32; Case C-90/97 Swaddling ECR I-01075, paragraph 20; Case C-589/10 Wencel, judgment of 16 May 2013 (not yet reported), paragraph 49.

  61. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported), paragraph 45; Case C-102/91 Knoch [1992] ECR I-04341, paragraph 23; Case C-90/97 Swaddling ECR I-01075, paragraph 29.

  62. Article 11 of Regulation 987/2009/EC establishes the following criteria: duration and continuity of presence; person’s situation (working status and family ties); exercise of non-remunerated activity; source of income of students; housing situation (permanent or not); and tax residence. These criteria are also used by the European Commission in its Practical Guide on The applicable legislation in the EU, EEA and in Switzerland issued, December 2013.

  63. See Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported), paragraph 54. It was not the opinion of the Advocate General issued on 20 March 2014. He considered this article only relevant in the event of disagreements between institutions of two or more MS.

  64. Some questions can arise about this issue. Are social security systems ready to determine the MS of residence of their insurers? Can they easily gather the relevant information involved and control the duration and frequency of stays, especially inside the Schengen Area?

  65. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported). Mr I travelled to Germany on holiday in 2002 and received unplanned healthcare using his “Irish” EHIC. He was initially diagnosed with tetanus, but later he had a stroke that led to severe quadriplegia. Years later he was diagnosed with cancer. He continued being treated in Germany using a S2 form (issued for authorised planned healthcare). 11 years later and after more than 20 renovations of that S2 form, the Irish NHS claimed that Mr I did not reside in Ireland anymore for the purposes of continuing to use that form. Mr I answered that he wanted to return to Ireland, with his children, but that it was not practically possible. He had no job (he only delivered a few lecturers), property or bank account in Germany, where he did not pay taxes as he had no income. The odd thing is that, although it was apparently almost impossible for Mr I to travel in scheduled airlines, he travelled to Lisbon in 2004 and to Ireland in 2009. Mr I passed away on 7 April 2014 but the preliminary question was answered by the CJEU, considering it relevant for the purposes of the national proceedings.

  66. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported), paragraphs 49 y 50; Case C-90/97 Swaddling ECR I-01075, paragraph 30.

  67. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported), paragraph 56. This could be a key factor in Mr I case: that he was compelled by reason of his acute medical illness, and the convenient proximity of specialised medical care, to remain in Germany for that period. So, from the point of view of social security coordination, he must be considered a resident in Ireland and a kind of “medical refugee” in Germany.

  68. Article 25(A)(3) of Regulation 987/2009/EC.

  69. Case C-255/13 Mr I, judgment of 5 June 2014 (not yet reported).

  70. For more on this issue see Guidance note of the Commission services on the relationship between Regulations (EC) Nos 883/2004 and 987/2009 on the coordination of social security systems and Directive 2011/24/EU on the application of patients’ rights in cross border healthcare, note from the Commission AC 246/12, 21 May 2012, p. 17.

  71. There is a slight difference, as the Regulations establish that the MS of treatment should inform the competent MS if they consider it medically appropriate to supplement the treatment covered by the S2. However, the coverage is in essence the same.

  72. Case C-173/09 Elchinov [2010] ECR I-08889. See also Recital 34 of Directive 2011/24/EU.

  73. In such a way as to circumscribe the exercise of the national authorities’ discretion so that it is not used arbitrarily. See Article 9 of Directive 2011/24/EU; Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-05473, paragraphs 82 and 90; Case C-385/99 Müller-Fauré and van Riet [2003] ECR I-04509, paragraphs 83 to 85; Case C-372/04 Watts [2006] ECR I-04325, paragraphs 114 to 116.

  74. See article 7(7) of Directive 2011/24/EU.

  75. See Case C-385/99 Müller-Fauré and van Riet [2003] ECR I-04509, paragraph 106. This measure could be envisaged, for instance, to prevent so-called “doctor shopping or hopping”. Strban [13], p. 400.

  76. Authorisation should not be confused with the necessity to book some treatments in advance to guarantee their availability in that destination. See Article 19(2) of Regulation 883/2004/EC and Decision S3 of the Administrative Commission for the Coordination of Social Security Systems (OJ C 106, pp. 40–41, 24 March 2010).

  77. Article 15(A)(1) of Regulation 987/2009/EC establishes that if the insured person does not have an EHIC, the institution of the place of stay, upon request or if otherwise necessary, shall contact the competent institution in order to get one.

  78. Article 8(2) of Directive 2011/24/EU.

  79. Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-05473.

  80. Case C-512/08 Commission v. France [2010] ECR I-08833.

  81. Case C-372/04 Watts [2006] ECR I-04325, paragraphs 43–79.

  82. Pennings [12], p. 440. See for instance Case C-372/04 Watts [2006] ECR I-04325, paragraphs 109 and 110, referring to a double objective planification.

  83. See for instance the list of treatments subject to prior authorization according to the Spanish implementation (Royal Decree 81/2014, http://www.msssi.gob.es/en/pnc/normativa/rd812014.htm) and the English one (2013 No 2269, https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/252944/NHS_cross_border_regulations_2013.pdf). Where are the overriding reasons of general interest that justify some of the inclusions?

  84. The Commission should review the list of treatments subject to authorisation and the procedures to obtain it. Both the list and the procedures should be made public. The Commission should also determine whether the authorization procedures are necessary and proportionate (Article 8(1)(a)(ii) of Directive 2011/24/EU). Finally, if the implementation establishes administrative formalities, the Commission should make sure that said formalities are imposed internally as general formalities in the access to healthcare services (article 7(7) of Directive 2011/24/EU).

  85. Article 20 of Regulation 883/2004/EC and Article 8(5) of Directive 2011/24/EU.

  86. Case C-372/04 Watts [2006] ECR I-04325, paragraphs 46 to 62; and Case C-173/09 Elchinov [2010] ECR I-08889, paragraph 66.

  87. That could include hospital accommodation and meals for the insured person (Case C-466/04 Acereda Herrera [2006] ECR I-05341, paragraph 39).

  88. Travel, accommodation and subsistence costs for the patients and the persons accompanying them (Case C-466/04 Acereda Herrera [2006] ECR I-05341, paragraph 39). However, according to the freedom to provide services, ancillary costs are also covered if they would have been covered had the treatment taken place in the MS of residence (Case C-372/04 Watts [2006] ECR I-04325, paragraph 139).

  89. Case C-268/13 Petru (in progress).

  90. 19 June 2014.

  91. Article 8(6) of Directive 2011/24/EU.

  92. The TFEU allows a MS to restrict the freedom to provide medical and hospital services insofar as the maintenance of treatment capacity, or of medical competence on national territory, is essential for public health and even for the survival of the population (Case C-158/96 Kohll [1998] ECR I-01931, paragraphs 41, 50 and 51; and Case C-157/99 Geraets-Smits and Peerbooms [2001] ECR I-05473, paragraphs 72 to 74).

  93. Articles 7(9), 10 and 11 of Directive 2011/24/EU.

  94. Article 7(4) of Directive 2011/24/EU.

  95. Article 9(5) of Directive 2011/24/EU.

  96. Articles 25(B)(6) and 25(B)(7) of Regulation 987/2009/EC.

  97. To this extent, it does not matter if the costs of the treatment are €100 or €80 plus a €20 co-payment. The Directive will consider the costs incurred to be €100 in both cases.

  98. The legal text is confusing without previous knowledge of its case law origins. For more on this topic, see Carrascosa [3], p. 341. The application of the complement must be requested by the patient: Lhernould [10], p. 35.

  99. Article 26(7) of Regulation 987/2009/EC.

  100. Case C-211/08 Commission v. Spain [2010] ECR I-05267. See an analysis of this judgment in Carrascosa [4].

  101. Sometimes returning to the competent MS is not a choice. For instance, when the treatment is urgent or if there is no medical option to return and the treatment cannot be postponed.

  102. This would be the general case with regard to unplanned treatments, considering that the reimbursement would take place between institutions.

  103. Guidance note of the Commission services on the relationship between Regulations (EC) Nos 883/2004 and 987/2009 on the coordination of social security systems and Directive 2011/24/EU on the application of patients’ rights in cross border healthcare, note from the Commission AC 246/12, 21 May 2012, p. 22 and 29.

  104. As has already been mentioned, it would only be an option for wealthy patients from wealthy MS.

  105. If the treatment is urgent and requires prior authorisation under the Directive, this instrument would be difficult to use.

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    Dolores Carrascosa Bermejo

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This article is based on a presentation given at the Annual Conference on European Social Security Law 2014, organised by ERA and held on the 26 and 27 May 2014 in Trier, Germany.

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Carrascosa Bermejo, D. Cross-border healthcare in the EU: Interaction between Directive 2011/24/EU and the Regulations on social security coordination. ERA Forum 15, 359–380 (2014). https://doi.org/10.1007/s12027-014-0358-8

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