National express

Member states and many EU legal and policy experts confidently assert that the EU has no competence in healthcare and that it therefore remains the realm of national governments. Cases that contradict this claim are, however, common. A 1998 case that appeared before the European court of justice was that of Mr Kohl, who travelled from Luxembourg to Germany for orthodental treatment.

On his return, Luxembourg’s social security mechanism refused to reimburse him. Kohl took his case to the ECJ under article 49 of the EC treaty (defining the right of free movement of services) and regulation 1408/71 (defining the rights of individuals with social security entitlements to receive healthcare in any country in the EU).

The ECJ ruled in Kohl’s favour and he was fully reimbursed for the cost of his treatment. This case was not a one-off: over the past decade, many similar cases have had similar outcomes. This legislative gap has been filled by case law while democratic legislators remain at arm’s length.

Ten years on, the commission has stepped in to fill this gap. The draft directive, adopted on 2 July, gives the European parliament an opportunity to lead on behalf of European patients and citizens. Critics have voiced concerns about the threat this poses to national sovereignty and the organisation of their healthcare systems. Supporters have lamented the fact that it does not go far enough.

With this draft, the directorate general for health and consumer protection (DG Sanco) attempts to bring much-needed clarity to the court rulings. The commission’s impact assessment tells us that around 99 per cent of patients prefer to receive treatment at home.

The remaining one per cent need to or elect to travel for healthcare. By providing European citizens with a legislative framework so that they can be aware of and exercise their rights without having to pay a visit to the European court of justice, the EU is delivering clarity and assistance to its citizens, or at least that one per cent.

The proposed directive does, however, provide much food for thought. Is it fair and just that reimbursement is the mechanism of choice for cross-border mobility? What of those who cannot afford that initial payment? We have 27 different sets of patients’ rights in Europe: surely a directive with patients’ rights as its focus should be strengthening these rights, not institutionalising disparities and creating different classes of citizens?

The commission admits that there is no evidence that patient mobility benefits the overall health of a community: how can the parliament ensure it is representing the interests - and health - of the 99 per cent of European citizens who choose not to travel, as well as the one per cent who do?

The European parliament faces a huge challenge in protecting citizens and delivering a directive that is equitable and effective. Europe’s job is to consider every citizen, even those far from the decision-making process, and health is one of the highest priorities for all Europeans, as surveys repeatedly show.

This proposed directive is an essential piece of legislation and will spark a compelling debate. However, it carries with it some intrinsic issues that cannot be ignored. The health community is looking to the European parliament to strengthen the embryonic rights that this directive tentatively explores.

At a time when citizens are increasingly disengaged from Europe, a strong voice from our democratic representatives could galvanise the electorate to action in June 2009.

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