Once the Court had developed the right to cross-border health-care access as a service, it opened up the questions that flow from any attempt to establish social citizenship rights in the institutional structure and diverse economy of the EU—above all, what kind of a right can the EU establish when highly diverse Member States must be asked to pay for it? This section shows the apparent answer: rules for rights. The Court has refrained from developing concrete European standards of health-care access. They would be far more costly and intrusive than would be possible. Instead, it has developed a complex framework of intertwining principles which are used to evaluate the Member States' rules regulating the area of patient mobility and, indirectly, national rules on access to socially covered health care in general.
The Court of Justice has allowed the Member States to retain their procedures of mandatory prior authorisation for planned health care obtained abroad by their patients (patients subject to their social security legislation) in cases of treatments which require planning of infrastructure and other resources. These are hospital treatments and other treatments which involve use of ‘major medical equipment’ for which a mandatory prior authorisation procedure may be applied within the context of free provision of services. In case of applying the EU coordination regulations, prior authorisation is a general rule. However, a person is entitled, in both cases, to reimbursement when he/she did not have the time to wait for the authorisation decision, due to medical urgency. Under the Article 8 of Directive 2011/24, possibilities for the Member States to impose prior authorisation are wider than under the Court of Justice jurisprudence.50 Therefore, there is no one European procedure of allowing access to foreign health care. Each of the Member States can have its own authorisation procedure, and, presumably, its own list of health treatments which involve expensive equipment and planning.
Member States, generally, remain free to develop their own systems of health care cost control, which may include waiting lists. However, within the context of giving authorisation for someone to obtain a covered health treatment abroad, the Court acknowledged that the Member States determine the priorities for treatments by themselves, but the systems they set up need to be in accordance with the notion that a patient's medical condition has priority, and there have to be mechanisms to evaluate that condition and the patient's individual needs.51 The absolute needs of the patient applying for authorisation must be given the priority by Member State, as opposed to taking into account other persons' (on a waiting lists) needs.
The Court's focus on absolute needs can be criticised. An alternative approach, which would evaluate patient's relative needs (when needs are compared with needs of other persons on waiting lists and urgency to treat their medical conditions) would be more in line with the principle of solidarity and a more realistic reflection of how welfare states budget and operate. The Court of Justice approach facilitates those patients who are capable of paying upfront for a treatment and threatening litigation in case reimbursement is refused. Furthermore, the Court of Justice approach facilitates those patients whose needs may be less urgent than needs of those persons who are unfit to travel or are just unaware of the possibilities the EU law has given them.52
Member States retain their autonomy to fix the authorisation procedure itself, in all relevant cases. The Court of Justice has not set fixed concrete procedural standards on the EU level for the procedure on the Member State level. It, rather, stated that the prior authorisation scheme must be based on objective, non-discriminatory criteria known in advance, in a way that the national authorities' discretion is not used arbitrarily, and must be based on a procedural system which is easily accessible and capable of ensuring that a request for authorisation is handled objectively and impartially within a reasonable time and refusals to grant authorisation must be capable of being challenged in judicial or quasi-judicial proceedings.53
Therefore, no concrete deadlines or required body of evidence are defined by the Court of Justice. The Court, instead, established principles by which to judge the Member States' procedures. The prior authorisation scheme is a clear example of a ‘rules for rights’ approach, whereby no concrete European standards for access to health care abroad are established (including no concrete limit on national waiting times). Instead, the Court has developed principles on how to evaluate national prior authorisation frameworks.
The Court of Justice has not established a common European basket of covered health care. This means that the Member States are free to decide three things for themselves: the percentage of real cost of a health treatment they will socially cover (the rest of it being paid for by the patient or supplementary insurance); the number of (categories) of persons covered by national social security legislation; and the range of health-care services (types of treatments and medicinal products) covered by national social security legislation.54
All the above-mentioned dimensions of coverage remain within the ambit of the Member States' autonomy, as part of their ‘freedom to organise their social security systems.’55 However, in exercising that freedom, Member States must respect the core principles of EU, especially prohibition of discrimination on basis of nationality.56
As just demonstrated, the Member States are free to define by themselves the health-care services they will pay for, and the percentage of costs of a certain service they will cover. According to the EU coordination regulations, which determine the applicable national social security legislation in cross-border situations, the state of treatment rules apply in cases where a person goes outside the state of his/her social protection or residence for a specific purpose of obtaining health care.57 This means that for a treatment which costs €1.000, and the legislation of the state of treatment covers at 80%, the patient must pay €200 out of his/her own pocket.
The Court of Justice has, by applying internal market free provision of services rules in the area, developed an alternative conflict of laws rule (which has also found its way into the Patient Mobility Directive). Under this rule, a patient is entitled to obtain foreign health-care treatment according to the competent state rules and tariffs (tariffs for an equivalent domestic treatment). Therefore, in case the competent state covers 60% of the treatment, the patient will pay the entire €1.000 sum to the provider, and then claim the refund of €600 when he/she returns home.58 Of course, this is a simple scenario, in which the competent state and the state of treatment's equivalent treatments cost exactly the same. This does not always have to be the case. Furthermore, there may be no equivalent treatment in the competent state, which makes the calculation of the reimbursement even more difficult.
Free provision of services rules, as interpreted by the Court of Justice, provide an additional possibility to patients who are refused prior authorisation, according to EU coordination regulations, unlawfully. In those instances, the patients are entitled to the higher competent state coverage, up to the level of actual cost of the treatment. This means that, if the competent state's treatment costs €1.100, and is covered there fully (100%), while the state of treatment covers 80% of the treatment which costs €1.000, the competent state will reimburse €1.000 to the patient. The entitlement to the more beneficial competent state reimbursement has, in the meantime, become an explicit part of the EU coordination rules.59
It can be concluded, regarding payment methods, that the Court of Justice does not engage in defining by itself the level of social security health coverage of cross-border health-care treatments. It has limited itself into obliging Member States to provide for an additional possibility for patients, to be covered under more beneficial domestic (competent state) tariff. Again, we can see the ‘rules for rights’ approach, whereby there is no common European standard of the level of coverage but a principle that the Member States must apply most favourable rules for patients accessing health care abroad. Unsurprisingly, this approach has not simplified access to health care. To the contrary, it has established parallel systems, with different distributional and policy consequences and unclear borders.
Range (Depth) of Health Care Covered
As noted above, the Member States are free to determine the range of health care (treatments) their social security systems cover. There is no common European package of health-care entitlements. The Court of Justice ‘rules for rights’ approach increasingly affects Member States' determinations as well. In Geraets-Smits, the Court of Justice emphasised that the European law (internal market provisions on services) does not require the Member States to extend the package of health-care services they pay for. Therefore, a patient who obtains a planned health care outside the competent state is not entitled to its coverage if that treatment is not part of the competent state's social package, even if it is a part of state of treatment social package.62
An explicit provision stating the same limitation is contained within the coordination regulations related to the state of residence of a patient travelling abroad to obtain health care. The insertion of this provision (into the previous Regulation 1408/71) has happened as a direct result of the Court of Justice case-law, which tried to establish a patient entitlement to most effective health care anywhere within the EU.63 As we can see, the Court of Justice allows the same limitation to social citizenship within the framework of EU internal market law.
However, the Member States' freedom to define their social security packages is not absolute. The criteria for putting a medicinal product or a treatment within the ambit of covered health care must be non-discriminatory, not referring to the origin of a medicinal product, or a provider. If a Member State uses notions like ‘normal treatments,’ instead of concrete detailed lists of covered treatments as criteria for delimiting the scope of its coverage, those notions must be interpreted in a way which does not exclude treatments not provided on the competent state's territory. Therefore, ‘normal treatments’ must be interpreted as treatments defined as such by international medical science.64
The full repercussions of the Court of Justice's logic in Geraets-Smits, including the difficulty of identifying international medical science, could not have been entirely visible at the time. However, the Court further clarified its position in Elchinov. There the Court stated, with respect to giving authorisation for foreign treatment under coordination regulations that when national legislation contains broad definitions rather than detailed lists of precise covered health-care treatments, the national social security system is obliged to cover the most effective health treatment available within the EU, which falls within those national definitions, even if that treatment is not provided on the territory of the competent state.65
The described jurisprudence has also been incorporated into the Patient Mobility Directive. The Directive tries to reconcile the Court of Justice's extensive interpretations with the Member States' autonomy to define their health cover. Thus, the Preamble of the Directive clearly says that the Directive does not extend national coverage.66 Then, it reiterates the Court of Justice approach in Elchinov.67 This is followed by the Directive's normative part, containing a special recognition of Member States' freedom to define health care for which an insured person is entitled to assumption of costs, ‘whether at a local, regional or national level’ (a similar notion also present in the Preamble).68 Interpreting all this could keep many lawyers employed for a long time.
Member States, such as the UK, where only a general duty of the government to promote comprehensive health service (with some more specific provisions as regards certain services) is prescribed by statutes, would, according to the Court of Justice, have to cover any health treatment in the EU which could improve, to some extent, an individual patient's condition.69
There are few critical remarks which can be made regarding the Court of Justice approach in this area. First, the principles established to judge national rules on patient mobility are not adapted to the specific context of some Member States. In the UK (England), health care as of 2011 is organised in a way that local purchasers of health care called Primary Care Trusts (PCTs) are allocated annually a certain amount of money, which they further allocate according to the needs of their local population. Therefore, the extent of covered treatments is, generally, not defined by national statutes or ministerial decrees provided by statutes but on the level of local policy making by relevant local bodies.70
The systems which do not use detailed national legislative lists of covered treatments might find themselves obliged to cover more foreign health care than those which use those lists. Logically, this means that patients from the systems which use detailed lists are put in a position which is not equal in terms of accessing foreign health care, with the position of the patients from systems which do not use such lists.
Second, since Member States are still free to define coverage by themselves, nothing prevents them from maintaining their autonomy by introducing detailed closed lists. This is a major flaw of the ‘rules for rights’ approach, since it creates an incentive for the Member States to impose limitations which will be in accordance with the EU law but still limit European social citizenship. The crucial standard used by the Court of Justice to judge Member State standards is non-discrimination, as demonstrated above. The non-discrimination standard, however, does not correspond well with social rights. Social rights, unlike negative civil rights, require a positive action on part of the Member States' policy makers.71 That action can be equalisation in two directions: either equalisation on higher level or equalisation on lower level.
Member States can limit their rules on coverage in general in order to prevent an EU law-imposed obligation to cover very expensive foreign treatments (even under foreign tariffs, according to the EU coordination regulations). However, excluding only specific treatments which are not available domestically could, presumably, be hard to justify to the Court of Justice as non-discriminatory. Therefore, the Member States may resort to excluding broader categories of treatments from their coverage, categories including both treatments available domestically but also the more expensive treatments available only abroad (for example, in vitro fertilisation, which the UK rations for a variety of clinical and ethical reasons but which is widely available in southern Europe). Reducing the coverage of health-care systems is not a step forward for social citizenship.
Third, the fact that the Court of Justice introduces a common European standard of effectiveness (according to international science), may seem to go a bit further than the ‘rules for rights’ approach identified in this article. This European standard is given priority in a sense that an individual is entitled to a most effective health care for his/her individual condition within the framework of national social security coverage broadly interpreted. The problem is that the rules for rights approach might still rule out health policies that look ethical and sensible but violate the emerging rules.
An example of the latter problem is the standard of Quality Adjusted Life Years (QALY) which is an index of survival that is adjusted to account for the patient's quality of life during this time, or, in other words, number of extra months or years of life of a reasonable quality a person might gain as a result of treatment.72 This standard is used by the National Institute for Health and Clinical Excellence, which evaluates new medical technologies on cost-effectiveness basis for the English NHS, and whose positive evaluation means the PCTs must allocate part of their resources to fund the approved treatment.73
If an extremely expensive treatment may prolong one's life for two months, should it be covered or not? According to the Court of Justice logic of giving priority to absolute needs, the answer is affirmative. However, the problem is that social security is not only about patients who seek treatments abroad but also affects other patients whose treatments will not be funded, or the funding will be delayed, because of the EU law obligation to cover the foreign treatment. What legal (legislative) technique should be used by the Member States to implement standards like QALYs within their systems?
The application of the effectiveness standard in the area of social citizenship highlights another distinction between the positive social rights and generally negative rights of free movement (negative in a sense that the Member States must refrain from imposing obstacles to free movement across Member States borders).