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The Uncertain and Differentiated Impact of EU Law on National (Private) Health Insurance Regulations

Abstract

This chapter seeks to analyse the impact of EU law on private health insurance (PHI) at national level. Does EU law have a vertical impact leading to a rather standardized situation or can we observe a more contrasted landscape? The chapter proposes a two-sided approach: on the one hand, a study of EU internal market law that frames and aims to regulate the health insurance market; on the other hand, a comparative overview of various national arrangements as far as health insurance marketization is concerned. Two main results are brought out. First, though EU law appears to be a “matrix” for private health insurance activity, it is actually rather flexible so that there is latitude for national regulation of the PHI market. This generates some uncertainty. Second, there are various forms of arrangements at national level relating to health coverage, and this is why the impact of EU law is differentiated.

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Fig. 4.1
Fig. 4.2
Fig. 4.3

Notes

  1. 1.

    ECJ case 28/82, Duphar, 7 February 1984, ECR 1984, p. 523.

  2. 2.

    ECJ case C-20/96, Snares, 4 November 1997, ECR 1997, p. I-6057. See also ECJ case C-158/96, Kohll, 28 April 1998, ECR 1998, p. I-1931; ECJ case C-247/90, Xhymshiti, 18 November 2010, ECR 2010, p. I-11845.

  3. 3.

    This type of Directive relates to certain sectors of business (e.g. transport, banking and financial markets).

  4. 4.

    Member States also decide on the procedures governing state payment for care. Some countries, such as the UK, have opted for a national health system that provides direct access to care; others, such as France, have opted to set up social insurance, covering part of the cost of care.

  5. 5.

    Several generations of “Insurance” Directive have been adopted since 1973. They were abrogated by Directive 2009/138/EC of the European Parliament and of the Council of 25 November 2009 on the taking-up and pursuit of the business of Insurance and Reinsurance. Known as the Solvency II Directive, this Directive is now a kind of European Insurance Code. Hereafter, reference will be made to this 2009 legislation, of which many provisions are taken from previous Directives (particularly those of 1973 and 1992). See Chap. 3.

  6. 6.

    ECJ case C-238/94, García, 26 March 1999, ECR 1996, p. I-1673.

  7. 7.

    ECJ joined cases C-159/91 and C-160/91, Poucet and Pistre, 17 February 1993, ECR 1993, p. I-637.

  8. 8.

    Traditionally, provident and mutual benefit institutions have social action funds financed by an annual budget that draws on the contributions received. These funds allow aid, assistance and additional services to be provided to policyholders in the circumstances covered by the insurance policy in question.

  9. 9.

    “Horizontal” EU Regulations do however cover some aspects of the contractual relationship in insurance policies (information, non-discrimination, etc.).

  10. 10.

    See Chap. 7.

  11. 11.

    On the difficulties of clearly defining the notion of substitute insurance, see Sagan and Thomson (2016, p. 85) and Mossialos et al. (2010).

  12. 12.

    On this concept, see the interpretative communication by the Commission, C (1999) 5046 of 2 February 2000 “Freedom to provide services and the general interest in the insurance sector”.

  13. 13.

    For instance, in a landmark ruling, the CJEU ruled against sex-based discrimination in insurance premiums and services. ECJ case C-236/09, Association belge des consommateurs Test-Achats, 1st March 2011, ECR 2011, p. I-773.

  14. 14.

    ECJ case 45/85, Verband der Sachversicherer versus Commission, 27 January 1987, ECR 1987, p. 405.

  15. 15.

    ECJ case C-41/90, Höfner and Elser, 23 April 1991, ECR 1991, p. I-1979.

  16. 16.

    Following this approach, a single structure may be defined as an undertaking for one type of activity in which it engages and not for another.

  17. 17.

    ECJ case C-118/85, Commission versus Italy, 16 June 1987, ECR 1987, p. 2599; ECJ case C-475/99, Ambulance Glöckner 25 October 2001, ECR 2001, p. I-8089.

  18. 18.

    ECJ case C-244/94, FFSA 16 November 1995, ECR 1995, p. I-4863.

  19. 19.

    ECJ case C-49/07, MOTOE, 1st July. 2008, ECR 2008, p. I-4013; ECJ case C-222/04, Cassa di Risparmio di Firenze, 10 January 2006, ECR 2006, p. I-289.

  20. 20.

    ECJ case C-350/07, Kattner Stahlbau GmbH, 5 March 2009, ECR 2009, p. I-1513.

  21. 21.

    The European Commission’s interpretative communications are also useful when it comes to identifying exclusively social activities. In this respect, §20 of the 2016 Communication on the concept of State aid (2016/C 262/01) specifies the following: “Solidarity-based social security schemes that do not involve an economic activity typically have the following characteristics: (a) affiliation with the scheme is compulsory; (b) the scheme pursues an exclusively social purpose; (c) the scheme is non-profit; (d) the benefits are independent of the contributions made; (e) the benefits paid are not necessarily proportionate to the earnings of the person insured; and (f) the scheme is supervised by the State”.

  22. 22.

    “The fact that the body provides insurance services directly does not, of itself, affect the purely social nature of that function, in so far as it does not affect either the solidarity inherent in that scheme or State supervision of it”. See also ECJ case C-218/00, Cisal, 22 January 2002 concerning Italian legislation covering “workplace accidents and professional diseases”, ECR 2002, p. I-691.

  23. 23.

    ECJ case C-437/90, AG2R, 3 March 2011, ECR 2011, p. I-973.

  24. 24.

    In other words, tariffs are not determined on the basis of each employee’s loss exposure.

  25. 25.

    There is also a wide range of possibilities when it comes to management modes, that is how, practically speaking, general-interest missions are taken up. Public authorities have a high degree of freedom in this respect: they may perform general-interest tasks “by their own means, without being required to enlist third-party entities” (ECJ case C-480/06, Commission versus Germany, 9 June 2009, pt 45, ECR 2009, p. I-4747). Alternatively, they may also opt to outsource the management of general-interest economic activities or entrust general-interest missions to private operators.

  26. 26.

    TPI case T-289/03, BUPA, 12 February 2008 (Irish case), ECR 2008, p. II-81.

  27. 27.

    For an example, see Chap. 6 (Belgium case). For another example, see the challenge to aid granted by the French State to certain mutual benefit institutions for civil servants following a ruling by the European Commission on 27 July 2005.

  28. 28.

    Guide to the application of the European Union rules on state aid, public procurement and the internal market to services of general economic interest, and in particular to social services of general interest—Commission SWD(2013) 53 final/2.

  29. 29.

    This binary alternative may apply not only to an entire market, but also to particular market segments.

  30. 30.

    In this chapter, only EU member States will be reviewed.

  31. 31.

    Alliance nationale des mutualités chrétiennes, Union nationale des mutualités neutres, Union nationale des mutualités socialistes, Union nationale des mutualités libérales, Union nationale des mutualités libres.

  32. 32.

    This does not preclude the determination of whether these sickness funds are or are not undertakings in the sense of EU competition law (ECJ case C-59/12, BKK versus Zentrale zur Bekämpfung unlauteren Wettbewerbs, 3 October 2013).

  33. 33.

    Civil servants, self-employed individuals and high-income employees (the annual earnings threshold was €59,400 in 2019).

  34. 34.

    The principle of solidarity is at the core of social security programmes and systems. Technically, it means that contributions or premiums paid to social insurance schemes are not related to individuals’ risk profile. Healthy persons subsidize people in poor health, young people subsidize older ones, and so on.

  35. 35.

    The content of the basic benefit package is not uniform in Europe, though it is fairly comparable. In many countries, optical care is totally excluded and dental care is partially covered.

  36. 36.

    These are the EU countries in which managed competition has been introduced into the statutory health insurance scheme. There are also RES in voluntary health insurance markets such as in Ireland.

  37. 37.

    Employers’ representation was progressively introduced into the health insurance boards during the 1960s.

  38. 38.

    The 1993 Act has been in force since 1997.

  39. 39.

    “Community rating” means that the insurance company must charge the same rate for a given level of service, regardless of age, sex or health status.

  40. 40.

    From 0.02% in 2002 to 1.5% in 2015 (Busse et al. 2017).

  41. 41.

    With a possible exemption based on the exception for services of general economic interest (BUPA case).

  42. 42.

    General Court case T-216/15, Dôvera zdravotná poist’ovňa, a.s. versus Commission, 5 February 2018.

  43. 43.

    We shall focus here on countries in which voluntary health insurance plays an explicitly complementary role, covering user charges for publicly financed health benefits.

  44. 44.

    Overall, private health insurance does not make a significant contribution to total health spending in the European Union. It accounts for less than 5% of total health expenditure in two-thirds of the Member States, although it plays a considerably larger role in Slovenia (13.1%), France (12.8%) and Germany (9.3%). Source: European Commission, Private health insurance in the European Union: Final report prepared for the European Commission, Directorate General for Employment, Social Affairs and Equal Opportunities, 24.06.2009, p. 6.

  45. 45.

    The French legislation limits risk selection within collective complementary health plans set by employers or sectoral collective bargaining.

  46. 46.

    ECJ case C-239/98, Commission versus France, 16 December 1999, ECR 1999, p. I-8935.

  47. 47.

    ECJ case C-41/10, Commission versus Kingdom of Belgium, 28 October 2010, ECR 2010, p. I-138.

  48. 48.

    “Operations of provident and mutual benefit institutions whose benefits vary according to the resources available and in which the contributions of the members are determined on a flat-rate basis”.

  49. 49.

    Alongside a number of smaller occupational schemes with restricted membership.

  50. 50.

    VHI had to submit an authorization application to the Central Bank, like all health insurers, with a deadline at May 2014. VHI finally complied with the solvency requirements in January 2016.

  51. 51.

    ECJ case C-82/10, Commission versus Ireland, 29 September 2011, ECR 2011, p. I-140.

  52. 52.

    In the sense that there was a blurry zone between mandatory and voluntary health coverage.

  53. 53.

    This coverage is offered to all residents whose earnings are under a certain threshold. It is financed through a national fund that collects special taxes from the complementary health insurers (profit and non-profit organizations) which sell voluntary health insurance in France.

  54. 54.

    Private health insurers are induced to offer complementary packages whose content is determined by law, the so-called “responsible and solidary contracts”: these plans must cover all user charges for healthcare provided in the scope of the mandatory scheme (with some restrictions for a certain range of drugs) as well as hospital fees; they must also include minimum services and benefits for optical care. The insurer cannot engage in risk selection. Conversely, these plans must not cover user charges when the patient does not respect the “healthcare pathway” (obligation to consult one’s own general practitioner (GP); limitations in the possibility to consult physicians who charge extra fees not covered by the mandatory health insurance, etc.).

  55. 55.

    The Employment Act 2013, in accordance with the national collective agreement signed on January 2013 by the French national employers’ associations and workers’ unions, aims to extend complementary health coverage. It states that the trades unions and employers’ associations bound by a sectoral collective agreement have a duty to bargain about the implementation of collective complementary health insurance, if such a plan has not yet been implemented in their professional sector. Then, employers at the company level have a duty to propose to their employees a complementary health coverage which complies with the collective agreement requirements in this respect (deadline on January 2016). Under the 2013 Act, employers have to financially cover 50% of the premium charges.

  56. 56.

    ECJ case C-185/11, Commission versus Slovenia, 26 January 2012.

  57. 57.

    More precisely, the Commission considered that even if the risk equalization scheme could be seen as a State aid, it was nonetheless compatible with the internal market.

  58. 58.

    Court of First Instance of the European Communities, case T-289/03, BUPA e.a. versus Commission, 12 February 2008, ECR 2008, p. II-81.

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Martin, P., Del Sol, M. (2021). The Uncertain and Differentiated Impact of EU Law on National (Private) Health Insurance Regulations. In: Benoît, C., Del Sol, M., Martin, P. (eds) Private Health Insurance and the European Union. Palgrave Macmillan, Cham. https://doi.org/10.1007/978-3-030-54355-6_4

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