Topic: Patient Mobility in the EU Title: Traveling for healthcare: the so-called health tourists

Health tourists are those European citizens that decide to travel to another Member State in order to purchase there medical goods or services, rather than in their country. Such examples are buying spectacles, seeking orthodontic treatments, receiving treatment for a disease*. This issue is of great interest and confusion because for the past thirty-five years, EU citizens do not enjoy established rights as patients and thus both the procedures for going abroad and the reimbursement policies are still not clarified. The main source of that problematic topic is no other than in any other grey area in the EU: the general conflict of power and competence that exists between the Member States and the European Union. Let us look at a key difference in the legal history of Member States and that of the EU. On the one hand, the constitution of the Member States, written or not, is primarily based on social principles (which take a great part of their legislation and national budget). On the other hand, the European Union is mainly dominated by economic principles, whilst social principles represent a small part of its legislation that do not generally fall within its powers. Note that EU legislation is mainly coordinated by the four fundamental (economic) freedoms, which are free movement of persons, goods, services and capital. More specifically, there is only one provision about healthcare in the EC Treaty stating that although health is a crucial issue, the EU has no power of harmonisation and it has to acknowledge and respect the Member States decisions (Art 152). This is important, because it means the EU cannot impose any health policy onto the national legislation. Therefore, in 1971, the first EU legislation (Reg 1408/71) on issues related to travelling and health, did not intend to encourage its citizens to purchase medical services and products abroad as a fundamental right. Instead, it provided a set of rules helping them to receive medical treatment in the case of an emergency, either because an accident occurred or because a specific treatment, which was necessary, was not provided within the Home State. Up till that point EU citizens knew what the rules and restrictions were and would fill in the appropriate forms justifying the use of health services abroad. However, the ECJ in 1998 created a major problem with that existing legislation because it interpreted these set of rules in a manner that they were not originally intended. The Court, with its ruling, promoted patient mobility via the principles of free

for reasons of simplicity we will only focus on the health services that do not require hospitalization.

movement of goods and services, which are economic rather than social or health issues. The achievement and obstacle here is that the ECJ by deciding to include health services and health goods within the fundamental freedoms, it created a health market in the EU. This was of an enormous importance because the Court gave EU citizens a new right to acquire medical services to any country they chose without restrictions. We see here, that this new undeveloped market did not exist before 1998 while the pre-existing set of rules proposed by the European Institutions could not facilitate it nor help towards its creation. This failure of further EU legislative action has created the oxymoron that health decisions are made, on the one hand, by the national governments that always take nationally-based approaches and are democratically elected. While on the other hand by the ECJ, which always takes decisions promoting the EU single market, though it can change its ruling from one case to the next and it is not democratically elected. In brief, not only there is a great legal uncertainty in this issue, but also the European Commission and Council have been silent on this conflict. European patients have waited long enough and the EU should finally take a position and a decision now!

Constance (Konstantia) Kratsa Scholar of the Alexandros S. Onassis Foundation