Health policy on European level

Article 152(5) of the Treaty Establishing the European Community (EC Treaty) preserves the responsibility of the Member States for the organisation and delivery of health services and medical care. The activity of the Community, however, supplements the policy of the Member States and is intended to improve public health, prevent human diseases and obviate sources of danger human health. It encompasses the fight against the major health scourges and complements the Member States’ action in reducing drugs-related health damage. The Council of the EU is also responsible for measures setting high quality and safety standards of organs and substances of human origin, blood and blood derivatives. This, however, is a partially harmonised area of activity, which means that Member States are also free to retain or introduce more stringent protective measures of their own.

Regarding the transposition of European law into national legislation, it is a recurring bone of contention within the Committee whether European legislation should be transposed on a straightforward like-for-like basis or whether the national bill should ‘top up’ the European provisions. This question is likely to resurface in connection with the forthcoming transposition into German law of the European Parliament and Council Directive on setting standards of quality and safety for the donation, procurement, testing, processing, preservation, storage and distribution of human tissues and cells, which has now been adopted in Brussels. The Committee examined the proposal for this directive in the spring of 2003 in consultation with the author of the relevant European Parliament report. Following this examination, the Committee expressed its support for the efforts of the Federal Government to ensure that the discussion of the proposal for a European directive would culminate in an instrument which would guarantee a high level of protection of the health of EU citizens by establishing quality and safety standards for the medical use of human tissue and cells. In addition, the Committee endorsed the intentions behind the amendments to the draft directive that were tabled by the European Parliament. Lastly, the Committee reserved the right to press for more stringent safeguards when the time came to transpose the instrument into national law.

The distribution of powers laid down in Article 152 of the EC Treaty does not rule out the possibility that the four basic economic freedoms enshrined in the EC Treaty, namely free movement of goods (Article 28), free movement of persons (Article 39), freedom to provide services within the Community (Article 49) and free movement of capital (Article 56) may effectively influence national health systems. Free movement of goods affects trade in pharmaceuticals, for example. The market in pharmaceutical products is almost completely harmonised, at least with regard to the licensing of such products. The comprehensive set of rules in this field is intended both to protect public health and to promote the completion of the single market.

Several decisions of the European Court of Justice (ECJ), moreover, have signalled clearly that its jurisprudence gives precedence, in principle, to the fundamental economic freedoms over the competence of the Member States to organise their own health systems. In 1998, for instance, the ECJ ruled that medicinal products and medical services are subject to the free movement of goods and freedom to provide services. Further judgments in 2001 stipulated that patients resident in one Member State could obtain treatment in another under freedom to provide services. The German legislature drew the appropriate conclusions and incorporated this interpretation into the national legal system with the adoption of the Statutory Health Insurance Modernisation Act (Gesetz zur Modernisierung der gesetzlichen Krankenversicherung), whereby all insured persons can now obtain services abroad and have the cost reimbursed by the statutory health-insurance scheme in Germany.

Other current examples showing how the rules of the single market can have repercussions on the health system are the Working Time Directive, with its implications for stand-by duty in hospitals, and the Services Directive. The subjects of both directives have been addressed on several occasions by the Committee, exercising the right to take up issues on its own initiative, in order to engage in the critical dialogue, based on up-to-date situation reports requested from the Federal Government, through which Parliament monitors the European legislative process and the transposition of European law. Questions relating to the treatment    of health services, which were eventually removed from the scope of the Services Directive because of their special quality requirements, following vehement protests in the Member States, were also the occasion for two visits to Brussels by the Committee in April 2005 and May 2006. As a result, the Commission’s stated intention of initiating a legislative proposal pertaining specifically to health services is now the focus of attention, since the scope of the proposed legislation is to extend beyond the content removed from the Services Directive to “develop a Community framework for safe, high-quality and efficient health services by reinforcing cooperation between Member States and providing clarity and certainty over the application of Community law to health services and health care”.

These examples illustrate the way in which the increasing mobility of patients and doctors and the continuing integration of the EU have fuelled discussions on the need to make the existing welfare systems more compatible. Accordingly, the ‘open method of coordination’ is now being used in the health sector too with a view to propagating best practice and harmonising more closely the aims of the Member States. The Commission has formulated general objectives for the health sector, namely accessibility of care for all, based on fairness and solidarity, high-quality care keeping pace with medical advances and with the emerging needs associated with ageing and, lastly, long-term financial stability of care provision. At the next stage in the process, the Member States are now presenting national reports on current and future challenges in their respective countries and on the reforms they have launched. Thereafter, the Commission will take these into account in compiling common guidelines for the streamlined social protection process. These guidelines are intended for subsequent incorporation into a number of development and reform strategies for health services and long-term care. The result will be presented in a joint report on social protection and social inclusion. The Union’s aim is to establish a ‘European social model’ in which all citizens of the Union enjoy the same guaranteed minimum standards and basic safeguards. Although we endorse these objectives in principle, there remain some reservations. On account of historically rooted differences, methodological problems could occur when it comes to comparing data and could lead to flawed conclusions. Moreover, the indicators that have been developed to date were designed to measure factors relating to social reintegration and old-age provision, which generally focus on financial aspects. 

The ways in which the Committee on Health involves itself in this process include questions and requests for reports to the Federal Government on the content of relevant communications the latter has received from the Commission. Besides the proposals that are regularly referred to the Committee for discussion, the members of the Committee also seek regular briefings from the Federal Government before and after the meetings of the Council of EU Ministers responsible for employment, social policy, health and consumer protection on fresh developments and on progress made on common European projects, such as the introduction of the European health-insurance card.