The Implications Of The European Committee Draft Withdrawal Understanding Text For Health, Purpose 1: Patients In Addition To Reciprocal Healthcare.
May 17, 2018
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Tamara K Hervey, Jean Monnet Professor of European Union Law, University of Sheffield
Here is an early on analysis of the implications of the European Commission’s draft legal text on the Withdrawal Agreement for some of the people-related aspects of health.
What I am focused on hither is patients, as well as inwards special reciprocal healthcare betwixt the UK as well as the EU-27 post-Brexit. There are 2 fundamental issues here:
- The seat of UK pensioners who possess got retired to some other European Union country, or volition do so inwards the future;
- The EHIC for emergency tending when visiting some other European Union country, or when people from EU-27 countries catch the UK.
The query of Brexit, health, as well as ‘people’ of class also includes NHS as well as social tending staffing. In that regard, the fundamental concerns are almost the EU-27 as well as EEA nationals who currently travel inwards the UK’s NHS as well as social care. Their seat nether the Withdrawal Agreement (WA) is the same as that of EU-27/EEA nationals who travel inwards other sectors of the UK economy, as well as others possess got analysed their seat already.
This is the commencement fourth dimension nosotros possess got had whatever legal text on withdrawal available for analysis, apart from the proposed clauses on the transitional (or implementation) period, which were analysed here. The text is complex, as well as similar all legal texts, its total implications volition possess got fourth dimension to emerge. So this is only a commencement take, as well as I may good possess got got things wrong: if yous spot anything I’ve missed or misunderstood, delight live inwards touch.
I recognise, of course, that the physical care for of the UK leaving the European Union is a negotiation, that this text is yet to live adopted past times the EU-27 Council, much less agreed betwixt the European Union as well as the UK, as well as that ‘nothing is agreed until everything is agreed’. It would live prudent, therefore, for us also to invention for a ‘no-deal’ Brexit, where nosotros leave of absence without whatever Withdrawal Agreement.
Finally, past times way of introduction, I should say that I would dearest to live able to compare this analysis amongst the UK’s preferred legal text. Sadly none is currently available. And the Prime Minister’s latest speech, on 2 March 2018, does non comprehend reciprocal healthcare explicitly at all. There is i of the PM’s ‘five tests’ that is relevant though: ‘reaching an enduring solution’. What follows shows that, should the UK concur to the text as proposed past times the European Commission, for at to the lowest degree some aspects of the EU-UK human relationship relevant to health, the solution proposed volition suffer for much longer than some mightiness fearfulness (or promise for).
The timeline:
The text proposes 3 periods of time, each of which involves dissimilar legal rights as well as obligations:
- now (while the UK is a Member State of the EU);
- a transition menses (which the UK authorities calls an ‘implementation’ period), which starts when the WA enters into strength on xxx March 2019 (Article 168) as well as ends on 31 Dec 2020 (Article 121); as well as
- thereafter.
Whether the precise dates live the negotiation or not, nosotros are talking almost at to the lowest degree 3 dissimilar timeframes, amongst the associated legal complexity.
It is non going to live slow for people to sympathise what their rights are, how to enforce them, or what obligations governments (the UK, as well as those of the EU-27) are under.
I desire to suggest inwards what follows that, implicit inwards the text of the WA as proposed, is a 4th menses of fourth dimension – quite a long way into the futurity – where no farther rights as well as obligations apply.
Where nosotros are now:
To grossly oversimplify, patients currently taste rights to cross-border healthcare inwards the European Union nether 4 types of European Union arrangements: S1 for residents inwards some other European Union country; S2 as well as the Patients Rights Directive for planned care; as well as EHIC for visitors. Because access to the UK NHS plant on the footing of residence, rather than having paid taxation or social safety into the UK scheme per se, EU-27/EEA nationals who run into the NHS ‘ordinary residence’ test inwards the UK de facto possess got a laid of rights inwards domestic police clit too. (NB, the hyperlink is to the rules for England: they are dissimilar inwards Scotland, Wales as well as Northern Ireland.)
The European Union police clit entitlements essentially travel on the footing of coordination of the really dissimilar social safety systems across the EU. They are purpose of European Union police clit on gratuitous displace of people as well as European Union citizenship, but they do non depend on harmonisation (or ‘regulatory alignment’) of national rules. Indeed the European Union Treaties (in Article 168(7) TFEU) dominion out such harmonisation, referring to Member States’ responsibilities for “the Definition of their wellness policy as well as for the organisation as well as delivery of wellness services as well as medical care”, including “the direction of wellness services as well as medical tending as well as the allotment of the resources assigned to them.” Instead, the European Union coordination rules operate to smoothen the way for people who cross the EU’s internal borders – to work, to study, to retire, to visit. They protect people from the difficulties that would otherwise arise from the differences inwards the organisation of social security, as well as access to benefits, including access to healthcare inside national wellness systems.
One way to hollo upward almost it is to imagine an European Union citizen, as well as her family, moving around the EU, working as well as paying into the social safety scheme inwards each state. As she moves, she accrues a form of ‘backpack’ total of the benefits they possess got earned, which she as well as her menage unit of measurement tin so lay together as well as telephone telephone upon if they demand them, for instance, when they retire, or if they teach besides unwell to work, or otherwise unemployed. (That’s called the regulation of ‘portability’ as well as of ‘aggregation’). Another way to hollo upward almost it is to realise that when an European Union citizen is inwards a dissimilar Member State from their ‘home’ Member State (who is responsible for protecting them from the life events that social safety systems are at that topographic point to assist with), they are treated as if they were a national of the Member State they are in. (That’s called the regulation of non-discrimination.)
Finally, to brand sure that people are neither able to ‘double count’ benefits, nor autumn through the gaps, for each somebody at that topographic point is a unmarried ‘competent state’, which is responsible for paying. That responsibleness is irrespective of the solid ground which provides the benefit, or inwards the representative of healthcare, medical treatment. (That’s called the ‘single province rule’.)
So, the British pensioners who possess got retired to the S of Kingdom of Spain are able to access the Castilian wellness tending scheme on the footing of the rights they possess got earned when they worked inwards the UK. The UK pays for that healthcare; it’s provided past times Spain, as well as it’s provided on the same footing as for Castilian nationals.
All of this is supported – as yous mightiness imagine – past times a complex laid of administrative arrangements, supported past times the EU. An Administrative Commission for the Coordination of Social Security Systems is made upward of i representative of each of the Member States, plus the European Commission. It deals amongst management as well as interpretation of the rules, as well as promoting collaboration (Regulation 883/2004, Articles 71 as well as 72). In practice, it relies on a network of national competent authorities, which part information so that they tin effectively coordinate their activities. There is an Electronic System which supports central of social safety information. European Union information protection police clit applies here.
Coordination of social safety is also an expanse where at that topographic point is a keen bargain of litigation: the rules are complex, as well as the CJEU is regularly called on to translate what they mean.
What the Commission text proposes: who is covered?
Just to teach this out of the way first. There is – rightly – a huge amount of attending beingness paid to the range of the proposed provisions on citizens rights nether Title I of Part Two of the draft WA. But what matters for this weblog is that who is covered past times those provisions is explicitly ‘without prejudice to Title III’ of this Part of the WA, which is on social safety systems.
So, if the WA is agreed as proposed, at that topographic point volition live i grouping of people who possess got rights to reside (Articles 12-19), to live employed or self-employed (Articles 20, 22-27), as well as to live treated as (with some pregnant exceptions) to nationals (Article 21). There volition live a dissimilar grouping of people who possess got rights nether the coordination of social safety provisions. One human beingness mightiness live inwards both groups.
Again, this volition live complex, as well as it won’t necessarily live slow for people to know what their rights are.
Who volition live covered? This is laid out inwards Article 28. The text echoes the text of the fundamental European Union Regulation (883/2004), Article 2. The basic thought is to include people who ‘are or possess got been acre of study to the legislation of’ either the UK or an EU-27 Member State. The legislation hither is the social safety legislation covered past times Regulation 883/2004. For the avoidance of doubt, Article 28 (3) says ‘ “legislation” agency legislation as defined inwards Regulation 883/2004, Article 1 (l)’. That provision says ‘legislation’ agency ‘laws [etc] relating to the social safety branches covered past times Article 3 (1)’. Those include ‘(a) sickness benefits (ie healthcare); motherhood as well as equivalent paternity benefits; invalidity benefits; one-time historic menses benefits (ie pensions) … unemployment benefits, as well as menage unit of measurement benefits’. From the indicate of stance of health, the fundamental things that thing are that healthcare is covered, as well as also that pensions are covered.
Regulation 883/2004 covers European Union citizens, stateless persons as well as refugees, members of their families, as well as survivors. It also covers nationals of other countries who are non already covered past times the Regulation solely because of their nationality. What is of import for cross-border wellness tending is that yous do non possess got to live or possess got been resident inwards some other Member State to your habitation solid ground to autumn inside the range of the Regulation. It is plenty that yous are ‘subject to the legislation’ of whatever Member State. Everyone who meets the UK ordinary residence exam for access to the NHS, for instance, is ‘subject to the legislation’ of the UK on this matter. Everyone across the EU, including inwards the UK, who is entitled to an EHIC bill of fare is ‘subject to the legislation’.
Unlike the full general WA provisions on European Union citizenship, which only give rights to those who possess got exercised their rights to gratuitous displace (for instance, past times residing inwards a Member State of which they are non a national), these provisions give rights to everyone who is acre of study to social safety legislation inwards either the EU27 or the UK.
What the Commission text proposes: what are their rights?
Article 28 (4) secures continued aggregation of rights accrued nether periods of social safety insurance for EUCs, UK nationals as well as others, who possess got worked or resided inwards an European Union Member State or the UK earlier the halt of the transition period. This is reinforced past times Article 29, which says that all the ‘rights as well as principles’ of Regulation 883/2004, as well as all the balance of European Union social safety coordination legislation, ‘shall apply’. It explicitly covers the principles of portability, aggregation, non-discrimination, as well as prevention of overlapping benefits/single province rule.
The logical number of this is that everyone who is inside the range of this purpose of the WA (ie who has accrued rights earlier the halt of the transition period) volition live able to travel along to taste the rights they currently taste inwards European Union law, fifty-fifty after the halt of the transition period. It would hateful that EU-27 nationals, as well as others, inwards the UK, would live able to rely on benefits that they possess got accrued when working inwards EU-27 Member States. Of course, they would demand to live lawfully resident inwards the UK, as well as that is covered past times the other parts of the WA.
It would hateful that those people inside the range of this purpose of the WA would live able to travel along to rely on the existing routes for planned cross-border healthcare (S2 as well as the Patients Rights Directive). For instance, UK pensioners inwards Kingdom of Spain would live able to travel along to rely on the S1 scheme to have healthcare inwards Spain. And – crucially for reciprocal healthcare – EU-27 visitors to the UK, as well as UK nationals when visiting EU-27, as well as others inside the range of this purpose of the WA, would live able to travel along to rely on their EHIC cards for emergency, unplanned care.
In other words, for everyone who is straight off inside the scheme of European Union coordination of social security, this would continue. All of it.
However, this interpretation doesn’t appear to handgrip truthful for cross-border healthcare when nosotros aspect at the balance of Article 29. For planned healthcare, where someone has begun a class of medical handling inwards a Member State other than the i which is ‘competent’, earlier the halt of the transition period, ‘that somebody shall possess got the right to travel along the handling until its end’ (Article 29 (4). ‘Until its end’ is presumably intended to include all phases of treatment, including follow upward care. The text does non advert to planned healthcare nether the Patients’ Rights Directive; only nether Regulation 883/2004. And it implies (because otherwise it would non live necessary) that access to planned healthcare that begins after the halt of the transition menses volition non continue.
There is aught explicit inwards the text on EHIC healthcare.
But at that topographic point is something on healthcare for pensioners. It’s inwards Article 29 (4), which is worth setting out inwards full.
“If, next the grant of a do goodness based on the periods of insurance, employment, self-employment or residence inwards accordance amongst Article 28(3) of this Agreement, the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland becomes competent for the healthcare comprehend of a Union citizen, or a Union Member State becomes competent for the wellness tending comprehend of a United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland national, that Union citizen or United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland national shall live entitled to healthcare comprehend as laid out inwards Articles 24 to xxx of Regulation (EC) No 883/2004 as well as the corresponding reimbursement procedures shall apply betwixt the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland as well as the Member State.”
Let’s unpack that. ‘Healthcare comprehend laid out inwards Articles 24 to xxx of Regulation 883/2004’ is healthcare comprehend for pensioners. Essentially the rules are that if someone is entitled to a pension from at to the lowest degree i Member State, they are entitled to have healthcare inwards some other Member State inwards which they reside, on the same footing as the residents of that Member State. The costs of the healthcare are borne past times the Member State responsible for the pension. This is the footing of the S1 scheme.
The discussion ‘becomes’ is a chip of a puzzle here. Influenza A virus subtype H5N1 Member State ‘becomes’ ‘competent for healthcare cover’ of someone whenever they autumn inside the national rules on who is covered past times their national healthcare system. But Article 29 (4) is almost when a Member State ‘becomes’ competent for healthcare because of (‘following’) the grant of some other benefit – here, pensions.
And, on its human face upward at least, the provision only applies when ‘the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland becomes competent for the healthcare comprehend of a Union citizen, or a Union Member State becomes competent for the wellness tending comprehend of a United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland national’. In other words, it does non comprehend the province of affairs where a person, having worked inwards the UK all their life, retires to an EU-27 Member State. The UK has e'er been competent for that person’s healthcare cover; it hasn’t ‘become’ competent for it.
So Article 29 (4) only seems to bargain amongst people who are inwards a cross-border province of affairs inwards the feel that they are EU-27 nationals who displace to the UK (and thus autumn nether the responsibleness of the UK’s NHS) or are UK nationals who displace to an EU-27 solid ground (ditto as well as vice versa), as well as so later retire, as well as seek wellness care, as if the European Union police clit that applies straight off yet applied. They would live entitled to the same rights as now. So the EU-27 nationals who come upward to the UK to travel could so retire home, or to some other European Union Member State, as well as possess got healthcare paid for past times the UK. And likewise UK nationals who travel as well as travel inwards an EU-27 Member State, as well as so retire to some other EU-27 Member State, or to the UK, would also possess got healthcare paid for past times that EU-27 Member State inwards which they worked. But Article 29 (4) doesn’t bargain amongst the UK pensioners who possess got worked all their life inwards the UK, as well as so retired to Kingdom of Spain (or some other European Union country): the biggest grouping of recipients of cross-border wellness tending who are concerned almost the effects of Brexit.
So the query is: which applies – the implications of the full general provisions of this purpose of the draft WA, or the implications of the text of the to a greater extent than specific provisions? In general, a to a greater extent than specific legal provision has priority over a to a greater extent than full general one. But given that none of these provisions are explicitly dealing amongst the 2 groups of people amongst which nosotros are most concerned here, as well as the conclusions I am drawing hither are only past times implication, it’s non at all clear to my take heed what is intended past times the draft text.
If the UK wanted to include the UK pensioners who possess got worked all their life inwards the UK, as well as so retired to Kingdom of Spain (or some other European Union country) inside the provisions of this purpose of the WA, it should seek an amendment or improver to the text. This could live achieved past times replacing the discussion ‘becomes’ as well as removing the cross-border chemical ingredient of Article 29 (4) as it currently stands. The text would so read:
“If, next the grant of a do goodness based on the periods of insurance, employment, self-employment or residence inwards accordance amongst Article 28(3) of this Agreement, the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland or a Union Member State is competent for the healthcare comprehend of a Union citizen or a United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland national, that Union citizen or United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland national shall live entitled to healthcare comprehend as laid out inwards Articles 24 to xxx of Regulation (EC) No 883/2004 as well as the corresponding reimbursement procedures shall apply betwixt the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland as well as the Member State.”
If the UK wanted to live clear that the EHIC scheme continues after the halt of the transition period, this would in all probability require a novel provision inwards the WA. As I’ve argued above, Article 29 (1) tin live read to imply that EHIC volition continue: but if that is what is intended, why non brand this explicit? Such a provision should live based on Regulation 883/2004, Article xix (the source of the EHIC system). An additional Article 29 (5) could read:
“A somebody referred to inwards Article 28 of this Agreement, as well as the members of his/her menage unit of measurement staying inwards a Union Member State or the United Kingdom of Great Britain as well as Northern Ireland of Britain as well as Northern Republic of Ireland shall live entitled to the benefits inwards form which teach necessary on medical grounds during their stay, taking into line of piece of work organisation human relationship the nature of the benefits as well as the expected length of the stay. These benefits shall live provided on behalf of the competent establishment past times the establishment of the identify of stay, inwards accordance amongst the legislation it applies, as though the persons concerned were insured nether the said legislation.”
And if the UK (and the EU) desire EHIC to continue, at that topographic point is no ground non to travel along amongst reciprocal arrangements on planned healthcare too. After all, nether Regulation 883/2004 planned healthcare tin only come about amongst the authorisation of the Member State which pays: the UK (along amongst every Member State) has e'er had command over this aspect of reciprocal healthcare inwards European Union law. So Article 29 (3) would also demand to live amended, to withdraw the words ‘before the halt of the transitional period’.
What the Commission text proposes: the fourth dimension frame
Most of the provisions inwards the WA possess got a tight temporal limitation: they cease at the halt of the transition/implementation period. This is non so for the social safety coordination provisions as proposed past times the European Commission.
On the contrary, none of the Title seems to possess got whatever specific temporal chemical ingredient to it. Article 29 (2) says ‘contributions both earlier as well as after the halt of the transition period’ as well as ‘rights flowing from such periods’ shall live aggregated. So this Title continues the coordination of social safety systems betwixt the UK as well as the European Union for those people who autumn inside its personal scope inwards perpetuity - indeed as Article 35 explicitly says, for the lifetime of the somebody covered.
This is a really long time, if yous consider that the personal range of this Title includes non only everyone who falls inside Regulation 883/2004 at the fourth dimension the WA comes into effect, but also their survivors (widowers as well as widows) as well as their families. The concluding somebody to taste rights nether this purpose of the WA volition live the somebody who inside its range who lives the longest. That could live someone who only enters the workforce, or the infant concluding born to someone inside the range of this purpose of the WA, at the fourth dimension the WA comes into force.
What the Commission text proposes: administrative as well as dispute village arrangements
The full general dominion inwards the proposed WA is that the UK volition cease to participate inwards European Union administrative bodies, committees or goodness groups, from the start of the transition/implementation period, ‘unless otherwise provided inwards this Agreement’ (Article 6). But at that topographic point is an explicit exception for the coordination of social safety systems (Article 30).
Likewise, inwards general, UK access to European Union databases, systems as well as networks ‘established on the footing of Union law’ (which includes the systems supporting coordination of social security) volition cease at the halt of the transition period. But the proposed WA makes an exception for those systems (Article 30). UK processing of personal data, both during as well as after transition/implementation must live inwards conformity amongst European Union police clit (Article 67). That volition comprehend information processing nether coordination of social security.
The proposal is that administrative cooperation betwixt the European Union as well as the UK on the coordination of social safety continues. The UK volition travel along to acquit its part of costs of the electronic scheme for central of social safety information (Article xxx (2)). However, the UK volition live an ‘observer’ inwards the Administrative Commission, rather than a total fellow member (Article xxx (1)).
In price of dispute village – as well as acquit inwards take heed that European Union social safety coordination involves a keen bargain of litigation – the proposal is that the CJEU volition travel along amongst its jurisdiction, including to hear preliminary references on interpretation of European Union law, throughout transition/implementation (Article 82). CJEU cases decided during this menses ‘shall possess got binding strength inwards their only on as well as inwards the UK’ (Article 85). The CJEU would possess got jurisdiction over the WA inwards full general during this menses (Article 126). After this point, it would possess got to a greater extent than express jurisdiction over citizens’ rights issues arising inwards the UK (including social safety aspects) for 8 years after the halt of the transition/implementation menses (Article 151), as well as its jurisdiction over the WA as regards UK citizens inwards the EU27 would travel along indefinitely. It would also possess got jurisdiction relating to disputes on interpretation of the WA indefinitely (Article 162), if those disputes could non live settled politically. If the interpretation higher upward is correct, as well as the temporal attain of this purpose of the WA is long after transition, this volition hateful oversight past times the CJEU of i purpose of the EU-UK human relationship good into the future. Furthermore, the powers of the independent authorization tasked to assist enforce the WA as regards European Union citizens inwards the UK would travel along indefinitely besides (Article 152).
Summary as well as fundamental implications
There are 2 fundamental issues that people concerned almost Brexit as well as cross-border healthcare desire to resolve:
- The seat of UK pensioners who possess got retired to some other European Union country, or volition do so inwards the future;
- The EHIC for emergency tending when visiting some other European Union country, or when people from EU-27 countries catch the UK.
The proposed legal text on the WA does non bargain explicitly amongst either of these. By implication, some of its provisions tin live read to guarantee existing European Union police clit rights good into the future: for the lifetime of anyone who holds such a right at the halt of the transition period. But other provisions tin live read to imply the opposite.
Whichever is the case, the proposal is to travel along cooperation betwixt the European Union as well as UK over coordination of social safety systems (though amongst the UK inwards an observer position), as well as oversight of the CJEU, good into the future, as well as sure long beyond the halt of the transition period.
Whether this lack of ‘taking dorsum control’ is a cost worth paying for the UK should depend on a attain of considerations. The Department of Health as well as Social Care should play a fundamental role inwards making that determination; as well as parliamentary oversight of such decisions should live without question. The Lords European Union Home Affairs Sub-Committee volition study shortly inwards its Brexit: Reciprocal Healthcare Inquiry. The Commons European Union Scrutiny Committee has already suggested incorporating Regulation 883/2004 (with suitable amendments) into the WA. It warned that ‘no deal’ would possess got potentially devastating effects on the lives of many, especially vulnerable people. This indicate was also noted past times the Commons Health Committee, which concluded (paras 125-6):
“Far from beingness a drain on the populace purse, the provision of tending to UK insured persons inwards the 27 other fellow member states represents fantabulous value to the British taxpayer. Moreover citizens across the European Union tin readily access vitally important, high character healthcare without encountering fiscal or bureaucratic barriers. Just as this allows someone from the European Union to travel inwards the UK, it enables a British pensioner to retire to France, Kingdom of Spain or Italy.
It is inwards the involvement of many hundreds of thousands of British people living across the European Union to hold unproblematic as well as comprehensive reciprocal healthcare arrangements. The Government’s negotiating objective should live preservation of the existing scheme of reciprocal healthcare so that European Union nationals inwards the UK as well as people insured past times the UK inwards other European Union countries tin hold their access to healthcare.”
Barnard & Peers: chapter 21, chapter 27
Photo credit: Daily Mirror