Please use this identifier to cite or link to this item: http://hdl.handle.net/1946/4888
Free movement of patients in the EU/EEA. The everlasting search for legal certainty
The subject of the paper is the current status of the free movement of patients in the EU/EEA, in particular the financial coverage in cross-border health care and how it is evolving. Both existing and the proposed framework currently under negotiations on EU level, the relevant case law of the Court of Justice and the EFTA Court as well as sources of academic literature are reviewed. The interest of European Union in social security matters, in particular health care services are examined as well as it is established who has the competence to regulate such matters. Traditionally cross-border health care on the cost of the home Member State has been seen as a privilege granted by the competent institution, through a scheme of prior authorisation, only to be granted under certain circumstances. The case-law of the Court of Justice however suggests that reimbursement of cost incurred for cross-border treatment is a Treaty based right of every Union citizen, only to be limited through measures which are justifiable and based on objective, non-discriminatory and proportionate criteria. The Court has established that the Member States’ public health care systems do without a doubt fall within the scope of the internal market provisions, in particular the principle of free movement of services and thus, while the Member States bear the competence in the field, they must respect Treaty provision, such as the free movement principles. The case-law of the Court is clear on a case-by-case basis, but still there currently is legal uncertainty surrounding the field regarding their general application. The field however is evolving and currently under big reform. Still, it is not easy to find a common ground satisfying all parties holding an interest in the matter, e.g. the interests of the Member States, who do not want to loose their grip on controlling the organisation and financing of their health care systems, and the interests of the European Union which is aiming at a borderless health care market where patients can easily and without restrictions seek health care throughout the Union In any case, the already existing framework is still applicable regarding emergency care and care received after obtaining prior authorisation for the treatment. In such cases the patient is entitled to full reimbursement for the cost incurred, or not having to bear any cost at all as the reimbursement may take place between the Member States. In other circumstances, the right to reimbursement for costs incurred in regard to cross-border treatment is unclear and currently under reform. Whatever the future might hold in the matters of European health care it is clear that the field is currently evolving and under big reform, which makes it an exciting area of law to explore and follow.
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