Patient mobility


Increased cross-border patient mobility has public finance implications but better co-ordination of national health policies and more co-operation at European level is expected to bring benefits both to patients and health systems. However, the directive on cross-border healthcare remains blocked at European Council level.

Health systems are primarily the responsibility of the member states, but in some cases, as confirmed by several European Court of Justice (ECJ) rulings since 1998 (i.e. Kohll and DeckerSmits and PeerboomsVanbraekelMüller-Fauré/van RietInizan and Watts), EU citizens may seek health care in other member states, with the cost covered by their own health systems. 

ECJ judgements have already made the following possible: 

  • Non-hospital care to which citizens are entitled in their home countries can be sought in any other member state without prior authorisation, to be reimbursed up to the amount of for provided by their home systems; 
  • Hospital care to which citizens are entitled in their home countries can be sought in any other member state if authorised by the home system. Authorisation is necessary if the citizen's own system cannot provide care within a medically acceptable time limit considering the medical condition. The citizen is reimbursed at least up to the amount provided for by the home country's system;
  • Those wishing to seek treatment abroad can count on their health authorities to provide them with information on how to seek authorisation for care in another member state, the reimbursement levels that will apply and how to appeal, if they wish, against decisions.

The Council agreed in June 2002 that there was a need to strengthen co-operation on patient mobility to promote access to high-quality health care "while maintaining the financial sustainability of healthcare systems". Following Council's invitation, the Commission convened, in 2003, a 'High-Level Process of Reflection on Patient Mobility and Healthcare Developments in the EU'. This reflection group produced, in December 2003, a set of recommendations which were largely taken into account in the Commission's April 2004 Communication on patient mobility.

To provide clarity and legal certainty on the cross-border access to care, the Commission decided to establish an EU framework on healthcare services. A consultation on the issue was organised in Autumn 2006 [see summary report of responses].

After repeated delays and lengthy consultations, the Commission finally published its proposal for a Directive on the application of patients' rights in cross-border healthcare on 2 July 2008. 

Overall, the directive is set to clarify the right of patients to seek health care in another EU country while being reimbursed by their national system.

The stated aims of the proposal are three-fold:

  • To help patients exercise their rights to access cross-border care;
  • To give people assurances about safety and quality of cross border care, and;
  • To help national health systems cooperate to achieve economies of scale. 

The proposal, if adopted, would give EU citizens the right to seek non-hospital care, such as dental care, visits to the optician or medical consultations, in another member state without prior authorisation. The patient would need to pay for the care first and then seek reimbursement from his statutory national system. The reimbursement will be made for costs of care which, had they been provided on national territory, would have been paid for by the social security system.

As for hospital care, which according to the Commission is defined as requiring at least one night of hospitalisation, member states may put in place a system of prior authorisation for reimbursement in two cases. First, if the care could have been provided and reimbursed in the home country and second, if the outflow of patients is such that it puts in risk either the finances of the national social security systems or the planning of hospital capacity. 

In early drafts of the proposal, patients did not need prior authorisation from their national systems either for hospital or non-hospital care. However, the Commission felt that such a proposal would not gather enough support from the European Parliament or the Council to be finally adopted. 

The draft directive asks member states to establish national contact points for cross-border healthcare and provide citizens with information on their right to seek care abroad. It also states that non-nationals enjoy the same rights regarding access to care as nationals and thus prohibits any discrimination based on nationality  or indeed any other grounds.

Regarding the enhancement of cooperation between EU-27 national health systems, the draft proposes mutual recognition of prescriptions issued in another member state and the establishment of European reference networks of care providers in order to allow access to specialised care for all and develop economies of scale. Member states are also expected to enhance cooperation on eHealth by adopting measures to make healthcare ICT systems interoperable and share their efforts regarding the management of new health technologies, including health technology assessment (HTA).

The momentum to secure agreement on cross-border healthcare has been stalled at the European Council, with a number of governments resisting the plan. Spain, Greece, Poland, Portugal and Romania are amongst those opposed to the directive. With the Spanish at the helm of the EU's rotating Presidency for the first half of 2010, little progress is foreseen.

The initial impetus for the directive arose following a number of cases taken by patients to the European Court of Justice. The Court found that citizens are entitled to travel for healthcare. Proponents of the directive say failure to agree a deal in Brussels will leave the ECJ to set policy in this area on a case-by-case basis.

member state representative noted that the draft had clearly improved from its earlier versions, as the member state's right to establish a prior authorisation system for hospital care was now clearly stated. However, he noted that it was important to leave the definition of hospital and non-hospital care to member states. 

He also argued that the proposal as such would considerably increase the administrative burden of member states. "It is justifiable to ask how big the administrative burden will be compared to the number of people actually crossing borders to seek care and to calculate how much tax payers' money is spent on maintaining an administration to serve those few," he added.

Irene Wittmann-Stahl, a health attaché at the Permanent Representation of Germany to the EU, said a lot of questions remained to be answered before the Council was able to form its opinion on the draft directive. These include: 

  • Legal certainty. 
  • Will ECJ jurisdiction be accepted as a starting point for the Directive or should one go back and make it stricter? 
  • Who should be protected? Individual patients or health care systems, which have the obligation and need to guarantee equal access to treatment? 
  • How about national steering capacity, which varies from one member states to another? 
  • At what stage are member states' rights are no longer respected? (cf. Article 152 of the Treaty guaranteeing the competence on organisation and delivery of health care to member states.) 
  • Despite Article 152, do member states accept that the four freedoms of internal market apply to health care as well? 
  • How about subsidiarity regarding patient mobility? 
  • Do member states agree that the directive creates more rights at EU level? 

Pascal Garel, the chief executive  of the European Hospital and Healthcare Federation (HOPE), is happy that the proposal is finally on the table and no longer in Commission corridors. He pointed to a number of potential problems in the proposal, namely the definition of hospital and non-hospital care, which varies from one country to another and could lead to problems as regards the need for prior authorisation.

He said the concept of continuity of care also needs better articulation and member states should be careful what they communicate to citizens in this regard. "The more precise the information, the better," said Garel. He also noted that the proposal's aim to provide citizens the opportunity to make informed choices is somewhat problematic as a lack of comparable EU level information on quality and safety data prevents such informed decisions.

In addition, he noted that equal access to care abroad will be compromised by the need for a patient to pay for the care first from his own pocket before being able to seek reimbursement. 

In this regard, according to the Commission, nothing in the draft directive prevents member states from setting up schemes that would pay the costs of care upfront if they want to. 

Finally, Pascal Garel believes that the new directive will introduce a lot of new administrative burdens. He also thinks it will not bring an end to court cases on the issue. On the contrary, the proposal could lead to an increased number of different types of cases unless member states establish extremely clear rules on the prior authorisation and conditions for reimbursement.

"We fear that this would not work out and the directive, which we welcome in principle, would not be able to bring the benefits nor to the patients nor to the service providers," said Marc Schreiner from the German Hospital Federation, challenging the whole Commission proposal and the way in which the draft proposes to reimburse the same or similar care received abroad according to national barometers for equivalent care. 

Referring to the results of an EU-funded project [HealthBasket] which concluded that comparing health services in the EU 27 is not possible (as access to different care and their prices vary considerably), Schreiner argued that until we know exactly how much taxpayers' money goes to, for example, specific dental care or a hip replacement, it is not possible to establish a reimbursement system as laid down in the Commission proposal. 

"The core problem of this directive is that as national health systems are not comparable, the reimbursement system can't work out and the directive would not help to initiate a cross-bordering supply of health services," said Schreiner. He also said that as we can't currently compare the health services, some have proposed the creation of baskets of treatments to which all citizens have a right all over Europe, and the price of which would be agreed upon. However, "this would clearly exceed the competence of the EU," he noted. 

German hospitals hope to get more patients from other countries but in order to do so "a clear reimbursement system is need", he concluded.

As for the European Parliament's political groups, the Liberals and Democrats (ALDE) regard the proposal as "a first important step toward a free European patient area". 

"Although it will not create new entitlements, this directive will make it easier for patients to exercise their rights and will ensure equal access to cross-border healthcare. For Liberals and Democrats, this long-overdue directive is a step towards the free movement of patients - a step we hope to make before the end of the Parliament's mandate," said ALDE Group Leader Graham Watson

Meanwhile, the Greens/European Free Alliance has a rather different view on the proposal. "The draft proposal is not as positive as it might seem at first sight. Without doubt, there is a need for action concerning the legal right to reimburse treatment received abroad. However, while travelling to another member state might be an option open to some individuals, increased mobility is not a panacea that will ensure quality treatment for all patients. The proposal must be considered in the wider context of the privatisation of public healthcare. Positive sounding labels like "mobility" and "choice" must not be allowed to mask a potential liberalisation of healthcare services. We are at serious risk of seeing the market take over and undermine national systems," argued UK Green MEP Jean Lambert

MEP Avril Doyle (EPP-ED, IE) argued that the directive was "a Charter for wealthy to opt for care abroad," as people need to pay for the care first themselves "which is not an option for the poor". Therefore, she said, it would lead to more inequality than equality.

The Confederal Group of the European United Left/Nordic Green Left argued that all issues addressed by the draft directive "must be solved within the existing framework of the coordination of social security schemes (Regulation 883/2004/EC). There is no need for a new directive based on an internal market approach to health care. We strongly oppose the re-introduction of 'Bolkestein' through the backdoor". 

The European Public Health Alliance (EPHA) said it welcomes any Commission initiative "that would work to strengthen patients' rights and provide greater clarity on access to health services in Europe". The alliance calls on the Commission "to ensure that any proposal is in line with the common values and principles in health systems agreed by member states in 2006, and stresses the need to respect the principles of the universality of health services, access to good quality care, equality and solidarity." EPHA also welcomes a proposal that "would support member states in addressing existing inequalities within health systems". 

The European Consumers Organisation (BEUC) particularly welcomes the establishment of national contact points "that will provide patients with information on essential aspects of cross-border health care, including procedures, reimbursements and means of redress in case of harm". However, the organisation urges further discussions on the system for prior authorisation for hospital care as "it must not lead to confusion and increased inequalities between the member states". 

The European Hospital and Healthcare Employers' Association (HOSPEEM) argues that draft Directive goes "beyond the rulings of the ECJ, by making it very difficult for the member states to ask for prior authorisation for hospital treatment abroad". This could, according to the association have "serious consequences" for the organisation, financing and delivery of healthcare in EU-27. Therefore, HOSPEEM believes that "patients should be required to go through prior authorisation procedures in their home country before seeking hospital care abroad and asking to be reimbursed for this care." 

The European Patients' Forum, an EU patient lobby, calls on the Commission and member states to ensure that "efficient administrative mechanisms for swift reimbursement are set up," in particular for economically disadvantaged patients. The forum also welcomes the establishment of national contact points and recommends that they are set up "in a transparent way and that quality information is appropriately disseminated across the country and regions". It also argues that "patient organisations, if adequately resourced, could play a useful support role and supplement the formal information received from health authorities". 

Eucomed, the European medical technology lobby, urged more cooperation on eHealth and health technology assessment (HTA) between the EU 27. It argued that "medical technology helps in increasing the cost-effectiveness of medical care". "When implemented in a collaborative manner, eHealth is a particularly good example of medical technology contributing to increase the overall efficiency and cost-effectiveness of healthcare systems in Europe today," added Eucomed chief executive John Wilkinson

Eucomed's views were endorsed by the Health First Europe, an alliance of patients, academics, healthcare experts and the medical technology industry. The alliance called on the EU "to facilitate the development and integration of eHealth into the provision of day-to-day healthcare services" and hoped the upcoming Recommendation on eHealth interoperability will clarify current legal uncertainties and lead to harmonised standards to speed up eHealth development.

  • Oct. 2006: The Commission adopted a Communication for consultation regarding the establishment of an EU framework on healthcare services to ensure cross-border access to safe, high-quality and efficient care [see summary report of responses to the consultation].
  • 4-10 Oct. 2006: The 9th European Health Forum Gastein was dedicated to the issue of  Health sans frontières .
  • 2 July 2008: The Commission presented a proposal for a directive on patients' rights in cross-border healthcare.
  • Sept. 2008: In-depth analysis of the draft Directive by the Council.
  • 31 Mar. 2009: European Parliament's Environment and Health Committee adopts a report by UK MEP John Bowis.
  • 23 Apr. 2009: A full sitting of the European Parliament adopted the Bowis report on first reading with few amendments.
  • 1 Dec. 2009: Following on from the efforts of the French and Czech EU Presidencies, the Swedish Presidency aimed to reach a deal on cross-border healthcare by the of its term. However, this prove impossible due to a blocking majority which included Spain.
  • If adopted, member states would have one year to comply with the directive.

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