Confusion surrounds EU’s health services directive


A long-awaited proposal to codify the circumstances under which EU patients can legitimately be covered for treatment received in other member states could be either redrafted, withdrawn or downgraded, EURACTIV has learnt.

After repeated delays, the proposal for a framework directive for cross-border healthcare in the EU was shelved on 19 December 2007 due to internal disagreement within the Commission and heavy criticism from some MEPs.

Several Commissioners’ cabinets have reservations about the proposal, including that of Margot Wallström, vice-president of the Commission in charge of relations with the European Parliament and the Council. Wallström had, according to her spokesman, felt that the Commission proposal did not have enough support from the two other institutions to be finally adopted. 

Wallström believes that “more thought and reflexion need to be put into the proposal, in particular the reimbursement system, and its consequences,” explained spokesman Joseph Hennon, adding that the Commission has been asked to redraft the proposal. 

A representative of a medical stakeholders’ organisation agreed with Wallström, arguing that “the impact assessment done on the proposal in autumn 2007 was not really one as the impacts cannot be predicted. In addition, we need to be aware that the proposal, as it currently stands, would increase inequality between rich and poor as not everybody could afford to pay for care in advance and wait to be reimbursed.”

“This is also an issue between the rich and poor EU member states,” added the representative. Health care costs vary widely across the EU, so it would be easier for rich countries to reimburse cheaper care abroad than for poor countries to reimburse their nationals seeking expensive care in wealthier countries.

One of the reasons put forward for holding up the proposal concerns fears that it could be considered as ‘the second Bolkestein Directive’. This could come at a politically sensitive time for the EU in the run-up to the ratification of the Lisbon Treaty and thus jeopardise – yet again – the EU’s institutional reform. 

“This is why Commission President Barroso also wants to delay the proposal,” said another source, adding that publishing an “interpretative communication” on the issue now would help postpone the legislative proposal until the next Commission. 

One diplomatic source acknowledged that the proposal is a “politically difficult issue” and that there is “something similar” in it to the Bolkestein directive, which caused street demonstrations in 2005. “Some are, however, only using the proposal as a political pawn and exaggerate the threats. The directive is not about liberalising health services, but codifying the circumstances under which people can legitimately be covered by their national health systems for treatment received abroad,” argued the diplomat. 

He also said that the Commission should have been more transparent over the proposal from the beginning, publishing it much earlier in order to launch discussions. 

Most member states seem to support the idea of a framework directive, but have insisted on attaching heavy conditions to it. Sweden is one of the countries backing the Commission proposal and the opposite stance adopted by its own Commissioner Wallström has drawn criticism in the country.

The Commission may eventually consider taking the most difficult issues, such as the reimbursement systems, out of the draft and presenting them in the form of a Communication instead. However, this is something that would “completely empty the framework directive of its substance,” the source said. 

According to a Commission spokeswoman, the proposal is still scheduled for publication at the “beginning of 2008”.

Poul Nyrup Rasmussen, the President of the European Socialists' Party, has warned that "if the Commission presents the directive in its current form, it will create political chaos in some member states in a very sensitive period, with ratification of the treaty and the run-up to European Parliament elections in 2009," making the link between this proposal and the Bolkestein directive. 

"This is about patient's rights. Patients should be entitled to treatment in another EU member state if necessary, with no worry about costs, safety and quality. Whatever the Socialists may say, this will in no way be a 'Bolkestein II' directive," said MEP Jules Maaten (ALDE).

MEP Graham Watson (ALDE) said that "the argument of some that the legislation cannot be finalised by the end of our mandate in 2009 is a weak excuse for inactivity." 

MEP Andreas Schwab (EPP-ED/D) has criticised the Commission's "intransparent and misleading communication policy" with regard to the directive: "It's a disgrace for Europe and the credibility of the European institutions in general if announcements by the Commission cannot be trusted anymore", Schwab said. "It is very surprising that Commissioner Margot Wallström is apparently pushing for a delay in presenting the proposal. The Commissioner is arguing for stricter obligations for patients to obtain a permit for stationary treatment abroad," Schwab added. 

The European Public Health Alliance (EPHA) welcomes any European Commission initiative that would work to strengthen patients' rights and provide greater clarity on access to health services in Europe. EPHA 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. The Alliance also welcomes a proposal that would support member states in addressing existing inequalities within health systems.  

The Platform of European Social NGOs (Social Platform) deplores that the proposed directive will deepen the healthcare divide between rich and poor, as "only a small group of well-off citizens will be able to take advantage of such a system, while putting the healthcare systems under stress in both the patient’s home country as well as the host country. "In some EU countries, 'health tourism' might have a negative impact on the public financing of national healthcare systems and will jeopardise the availability of affordable health care services," said Social Platform president Fintan Farrell. 

The European Federation of Public Service Unions (EPSU) and the European Hospital and Healthcare Employers Association (HOSPEEM) have argued that: 

  • It is not for the European institutions to impose market and/or competition mechanisms on the health care sector, which could consequently lower standards and increase the costs of healthcare systems and thus diminish accessibility to care. 
  • Health care should therefore be organised on the basis of common European social values including solidarity, social justice and social cohesion. 
  • They should also follow the principles of general interest, such as equality, accessibility and quality. 
  • It is essential that EU internal market or competition rules do not limit member states' autonomy in the implementation of these national responsibilities.  

Health systems are primarily the responsibility of the member states, but in some cases, as confirmed by several European Court of Justice (ECJ) rulings, EU citizens can seek healthcare in other member states with the cost being covered by their own health systems. 

In some instances healthcare may be better provided in another member state, for example, for rare conditions or specialised treatment. This may also be the case in border regions where the nearest appropriate facility may be situated in another country. 

Health services were excluded from the services directive in spring 2006 (the so-called Bolkestein Directive), but the many ECJ rulings show that they are to be considered as an economic activity and that Community law applies to them. 

To provide clarity and legal certainty on the issue as well as support for co-operation between national health systems, the Commission has decided to establish an EU framework to ensure cross-border access to health care services.

consultation was organised in Autumn 2006 [see summary report of responses].

  • 19 Dec. 2007: The Commission decided to hold back the proposal at the last minute.
  • The Commission has been asked to redraft the proposal.
  • No date is currently foreseen for the publication of the revised proposal. 
  • Consultation on the Commission communication regarding Community action on health services:Individual responses(2007)

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