Inside the Commission: the state of affairs in cross-border health care

Ms Marzena Matyja is a Legal Officer in the Unit ‘Free movement of workers and coordination of social security systems’ of DG Employment, Social Affairs and Inclusion. She took up this responsibility a year ago. Before, she dealt with migration matters in DG Home Affairs of the Commission and in the public sector in Poland. She was prepared to provide us with insight into current questions regarding cross-border health care.

trESS: Marzena, thank you for your time. Health is a policy subject that always ranks very high on the political agenda as it literally touches upon everyone’s life. Can you first clarify why the coordination of sickness benefits is an important topic for the daily life of every mobile citizen?

Marzena Matyja (MM): This area is particularly sensitive as any person can face health problems at any time. With an increasing number of EU citizens moving around Europe frequently, whether for work, study, holidays, retirement, or purely with a purpose of receiving medical treatment in another country, they have to be confident that they are not left without health care coverage. EU rules on coordination of sickness benefits enable these mobile citizens to access medical care abroad, whether it's planned or occasional, and to ensure the financial coverage of this health care. Since the health care systems differ significantly from one Member State to another, a lack of coordination rules could result in obstacles for those citizens in exercising their fundamental right to free movement within the EU.

trESS: Could you briefly explain which were the most important changes in this field with the introduction of the new Regulations on 1 May 2010?

MM: The main rules of the sickness chapter in the modernised Regulations remain similar to those contained in the previous Regulation, but they were well reorganised and simplified. There is no longer a distinction between the different categories of beneficiaries, but common provisions of the chapter apply to all the concerned persons insured in the EU Member States and their family members, except for pensioners and their family members for whom a separate system was maintained. Regarding the latter, the administration of health care for pensioners residing abroad was improved, which implied for instance a possibility to receive planned treatment in the competent Member State and a change of the competent country issuing the European Health Insurance Card. Improvements were also introduced regarding the reimbursement of health care provided abroad, notably by including in the text of the Regulations the so called Vanbraekel principle derived from the case law of the Court of Justice as well as clearer financial rules for reimbursement between the Member States.

The modernised Regulations also brought about horizontal changes which have had an impact on the sickness field. Since the major aim of the modernised Regulations was to further facilitate the mobility of Europeans, more people can now benefit from the coordination rules including those relating to health care. Another important horizontal change with a certain impact on the sickness area is the electronic information network that is currently being developed, the ‘EESSI system’, which in the future will allow national institutions to exchange cross-border social security related information by electronic means and thus improve access to social security benefits for citizens and reduce the administrative burden at the national level.

trESS: What are, from your experience within the European Commission, the most recurring coordination problems in the field of sickness benefits?

MM: The Commission receives a number of questions from pensioners residing abroad. This might be for several reasons – firstly, this group of people is probably the most concerned as regards their health care coverage and secondly, the specific coordination rules on health care for pensioners seem to be quite complex. Also, because health care systems are different in each Member State, the scope of benefits and the rules governing access to them might change while becoming a pensioner or while moving from one country to another. To avoid misunderstandings and keep encouraging mobility, we put a lot of effort into providing correct information to citizens, including pensioners, about their rights under the coordination rules. Soon we will add a video to the series of videos published on our website on rights of pensioners who worked in several countries in Europe or who decide to move to another country upon retirement, through which we try to explain the rules on social security coordination in a user-friendly way.

trESS: Since, as you say, the specific provisions of the Regulation with regard to cross-border health care for pensioners are rather complicated, does the Commission strive for further simplification in this area?

MM: This system of provisions currently laid down in Articles 23-30 of the Regulation is indeed quite complex, but that is because it takes into account the different scenarios pensioners might find themselves in, intending to offer the utmost rights to all mobile pensioners. The provisions concerned were subject to an analysis a few years ago, which confirmed the usefulness of the present system. As part of this analysis, in 2009 trESS delivered a Think Tank report on health care for pensioners. This report recommended to retain the provisions, as otherwise the existing rights of pensioners would risk to be reduced. The report has also underlined once again the need for cooperation between the national institutions and for effective information and assistance to mobile pensioners. Taking the results of this analysis into account, the Commission does not intend to change these articles on health care for pensioners in the near future. It is rather going to make efforts to better inform the pensioners about their rights and to closely follow the implementation of these provisions by the Member States.

trESS: As most people know, the coordination of sickness benefits is not restricted to the relevant provisions in Regulation 883/2004. Since the famous ECJ judgements in the cases Kohll and Decker, the landscape has totally changed for planned health care. Could you enlighten the reader on what this has brought along for EU citizens?

MM: Indeed these judgements have brought remarkable changes in addition to the existing arrangements under the Regulation. On the one hand, they have made it possible for patients seeking treatment abroad to get it without prior authorisation and to claim reimbursement of costs of this treatment from their home health care systems under the Treaty provisions on the free movement of services. On the other hand, if doing so, patients would always have to pay the costs of the treatment upfront and would be reimbursed back home according to the national rates there. This means that the amount of possible reimbursement might in some situations be lower than the actual expenses incurred.

trESS: The ‘patient mobility’ case law has only partially been integrated in the coordination Regulations. The hard nucleus of this series of judgements has been codified in a ‘Patient Mobility Directive’, adopted in 2011 and to be transposed by the Member States by 25 October 2013. What is this codification about and what will be its consequence?

MM: The judgements of the Court on patient mobility, based on the free movement of services provision of the Treaty, were not applied in the same way by all Member States, which led to inconsistent practices. That's why the Directive has codified these judgements into one instrument and introduced a number of measures facilitating their implementation, amongst which the provisions on the social security aspects. As a consequence, this codification has resulted in the existence of two EU legislative instruments covering, to a certain extent, very similar matters: one based on the free movement of persons and the other on free movement of services. The Regulations on the one hand and the coordination Directive on the other, have to be regarded as two independent instruments and should apply within their own designated scopes.

trESS: The adoption of the Patient Mobility Directive has thus confirmed the already existing ‘two-way’ system for cross-border health care. How does the Regulation interrelate in concreto with this new Directive and are there any conflict zones?

MM: The Directive itself clarifies this relationship. Its provisions specify that it shall apply without prejudice to the Regulation. It also safeguards that patients are not deprived of the more beneficial rights guaranteed by the Regulation when the conditions of this Regulation are met. This means that the coordination rules in place will continue to apply, however patients, well informed about their rights, will be offered a possibility to request the application of the Directive. It should be noted however, that in some spheres the application of either one or another of these instruments might bring different consequences for a patient, particularly regarding the procedures and the reimbursement rates of health care received by the patients abroad and yet more specifically, in case of persons residing outside their competent Member State. The Commission is therefore assisting Member States in an adequate transposition of the Directive. In my view, it is very important that all stakeholders also undertake the necessary efforts to ensure appropriate information of patients so that they can fully use their rights under both legal instruments.

trESS: A practical example of the coordination of sickness benefits that is visible to every citizen is the European Health Insurance Card or “EHIC”. Is this system running smoothly or are citizens sometimes still confronted with problems at the national level, as reported after the introduction of the card? Where should people inform themselves about the issuing and the procedures of the EHIC?

MM: In general the EHIC system is well established and operates without major reported difficulties. Of course, from time to time, we receive complaints, mostly about the EHIC not being accepted by a health care provider in a Member State. We also receive requests for information on rights of the EHIC holders, especially if they are in less typical situations, like for instance students or pregnant women. To still improve the correct functioning of the system, it is constantly needed to inform the citizens but also the national institutions and the health care providers about the possibilities offered by the card. This is primarily a duty of the Member States, but the Commission in parallel makes efforts to encourage the insured persons to make the best use of their EHIC.

Apart from the section on the EHIC on our website, we have produced a video on the EHIC which was very well received by the public and most recently, we have introduced a smartphone application including extensive information on the EHIC and how to use it in each of the 31 countries where it is recognised. To obtain their EHIC, insured persons should turn to their local health insurance institution which will also be the first instance to inform them about their rights and applicable procedures. The card is always issued free of charge.

trESS: One final question, Marzena. Next to the classical insurance systems for sickness benefits, most Member States have introduced schemes which are specifically oriented towards the needs of dependent people who need help to cope with daily life tasks. This is better known as ‘long-term care’. Such benefits are currently coordinated under the chapter for classical sickness benefits. As the trESS Think Tank report of 2011 already pinpointed, this results in several implementation problems. What will the near future bring in this area?

MM: Long-term care is a matter often discussed at the moment as its importance in the legislation of the Member States is constantly increasing. Over the last decades, Member States have started to develop various types of benefits for persons in need of care and this trend will continue, especially when looking at the ongoing demographic and socio-economic changes in European societies. Since the EU legislator has not yet created a specific coordination regime for these benefits, based on the case law of the Court of Justice, the long-term care benefits in cash should be coordinated under the Sickness Chapter. As the trESS Think Tank indeed pointed out in its 2011 report, we can see that the diversity of the long-term care benefits is by far larger than in the case of classical sickness benefits. At national level, these benefits are sometimes considered as sickness, family, old-age or non-contributory benefits or even as social assistance. We see that some Member States tend to apply the EU coordination rules for different social security branches (family benefits chapter, sickness benefits chapter, old-age benefits chapter) to these benefits, depending on their own national classification. This creates problems in the implementation of EU rules.

Being aware of these challenges, the Commission considers it of the utmost importance to reflect on the possible options for the EU coordination framework for long-term care benefits. The trESS Think Tank report of 2011 certainly contributed to this reflection. Currently, we are about to launch a public questionnaire on the matter which is part of a wider process of an Impact Assessment work that started earlier this year and that is due to be finalised by the end of 2013. As a result, the Commission intends to present a proposal on how these benefits could be best coordinated at the EU level and potentially included in the future revision of the Regulation. The subject is thus highly probable to be on our agenda in the years to come.

trESS: We are looking forward to that. Thank you very much!

MM: Thank you!

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