The implications of the Revised European Commission Draft Withdrawal Agreement text for health, part 1: patients and reciprocal healthcare (Updated 18 March 2018)

Tamara K Hervey, Jean Monnet Professor of EU Law, University of Sheffield

So it would seem that my early analysis of the implications of the European Commission’s 28 February draft legal text on the Withdrawal Agreement for some of the people-related aspects of health was too early. The European Commission issued a revised version of the text on 15 March 2018.  Here are my views on the revised text as it applies to patients, and in particular reciprocal healthcare between the UK and the EU-27 post-Brexit. There are two key issues here:

·         The position of UK pensioners who have retired to another EU country, or will do so in the future;

·         The EHIC for emergency care when visiting another EU country, or when people from EU-27 countries visit the UK.

As I said in the original blog, the text is complex, and like all legal texts, its full implications will take time to emerge. So this is only a first take, and I may well have got things wrong: if you spot anything I’ve missed or misunderstood, please get in touch.

I recognise, of course, that the process of the UK leaving the EU is a negotiation, that this text is yet to be adopted by the EU-27 Council, much less agreed between the EU and the UK, and that ‘nothing is agreed until everything is agreed’. It remains prudent, therefore, also to plan for a ‘no-deal’ Brexit, where we leave without any Withdrawal Agreement.

Finally, by way of introduction, I should say that I would love to be able to compare this analysis with the UK’s preferred legal text. Sadly none is currently available. And the Prime Minister’s speech, on 2 March 2018, does not cover reciprocal healthcare explicitly at all.

The timeline:

The text proposes three periods of time, each of which involves different legal rights and obligations:

·         now (while the UK is a Member State of the EU);

·         a transition period (which the UK government calls an ‘implementation’ period), which starts when the WA enters into force on 30 March 2019 (Article 168) and ends on 31 December 2020 (Article 121); and

·         thereafter. 

Whether the precise dates survive the negotiation or not, we are talking about at least three different timeframes, with the associated legal complexity.

It is not going to be easy for people to understand what their rights are, how to enforce them, or what obligations governments (the UK, and those of the EU-27) are under.

I want to suggest in what follows that, implicit in the text of the WA as proposed, is a fourth period of time – some way into the future – where no further rights and obligations apply.

Where we are now (this repeats my earlier blog for ease of reference):

To grossly oversimplify, patients currently enjoy rights to cross-border healthcare in the EU under four types of EU arrangements: S1 for residents in another EU country; S2 and the Patients Rights Directive for planned care; and EHIC for visitors.  Because access to the UK NHS works on the basis of residence, rather than having paid tax or social security into the UK system per se, EU-27/EEA nationals who meet the NHS ‘ordinary residence’ test in the UK de facto have a set of rights in domestic law too. (NB, the hyperlink is to the rules for England: they are different in Scotland, Wales and Northern Ireland.)

The EU law entitlements essentially work on the basis of coordination of the very different social security systems across the EU. They are part of EU law on free movement of people and EU citizenship, but they do not depend on harmonisation (or ‘regulatory alignment’) of national rules. Indeed the EU Treaties (in Article 168(7) TFEU) rule out such harmonisation, referring to Member States’ responsibilities for “the definition of their health policy and for the organisation and delivery of health services and medical care”, including “the management of health services and medical care and the allocation of the resources assigned to them.” Instead, the EU coordination rules operate to smooth 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 in the organisation of social security, and access to benefits, including access to healthcare within national health systems.

One way to think about it is to imagine an EU citizen, and her family, moving around the EU, working and paying into the social security system in each state. As she moves, she accrues a kind of ‘backpack’ full of the benefits they have earned, which she and her family can then put together and call upon if they need them, for instance, when they retire, or if they become too unwell to work, or otherwise unemployed. (That’s called the principle of ‘portability’ and of ‘aggregation’). Another way to think about it is to realise that when an EU citizen is in a different Member State from their ‘home’ Member State (who is responsible for protecting them from the life events that social security systems are there to help with), they are treated as if they were a national of the Member State they are in. (That’s called the principle of non-discrimination.)

Finally, to make sure that people are neither able to ‘double count’ benefits, nor fall through the gaps, for each person there is a single ‘competent state’, which is responsible for paying. That responsibility is irrespective of the country which provides the benefit, or in the case of healthcare, medical treatment. (That’s called the ‘single state rule’.)

So, the British pensioners who have retired to the south of Spain are able to access the Spanish health care system on the basis of the rights they have earned when they worked in the UK. The UK pays for that healthcare; it’s provided by Spain, and it’s provided on the same basis as for Spanish nationals.

All of this is supported – as you might imagine – by a complex set of administrative arrangements, supported by the EU. An Administrative Commission for the Coordination of Social Security Systems is made up of one representative of each of the Member States, plus the European Commission. It deals with administration and interpretation of the rules, and promoting collaboration (Regulation 883/2004, Articles 71 and 72).  In practice, it relies on a network of national competent authorities, which share information so that they can effectively coordinate their activities. There is an Electronic System which supports exchange of social security information. EU data protection law applies here.

Coordination of social security is also an area where there is a great deal of litigation: the rules are complex, and the CJEU is regularly called on to interpret what they mean.

What the 15 March Commission text proposes: who is covered?

Just to get this out of the way first. There is – rightly – a huge amount of attention being paid to the scope of the proposed provisions on citizens rights under Title I of Part Two of the draft WA. But what matters for this blog is that who is covered by those citizens’ rights provisions is explicitly ‘without prejudice to Title III’ of the citizens’ rights Part of the WA, which is on social security systems.

So, if the WA is agreed as proposed, there will be one group of people who have rights to reside (Articles 12-20), to be employed or self-employed (Articles 22-27), and to be treated equally (with some significant exceptions) to nationals (Article 21). There will be a different group of people who have rights under the coordination of social security provisions. One human being might be in both groups.

Again, this will be complex, and it won’t necessarily be easy for people to know what their rights are.

Who will be covered? This is set out in Article 28 of the draft WA. The text echoes the text of the key EU Regulation (883/2004), Article 2, but less so in the 15 March version than before. The starting point is to include people who ‘are subject to the legislation of’ either the UK or an EU-27 Member State ‘at the end of the transition period’.

‘Subject to’ is not a term that is defined either in the WA or in Regulation 883/2004. The nearest we have to a definition is in recital 7 of the Regulation, which simply says that, because there are major differences between Member States in the scope rules for social security schemes, ‘it is preferable to lay down the principle that this Regulation is to apply to nationals of a Member State, stateless persons and refugees resident in the territory of a Member State who are or have been subject to the social security legislation of one or more Member States, as well as to the members of their families and to their survivors’. 

In what follows, I am taking the view that ‘subject to’ means ‘entitled to benefits under’. That entitlement arises because of social insurance, employment, self-employment or residence (the main types of access rules found in the Member States for various benefits). However, it would be possible to argue that ‘subject to’ has a broader meaning, and that someone who is excluded from entitlement to benefits under the relevant legislation is nevertheless ‘subject to’ that legislation.  In the abstract, that argument seems very far-fetched. But where, for instance, access to a benefit is legally contested, for instance by someone resident in a state where benefit access is at least in part based on residence, the litigation could be argued to be ‘subject to’ that legislation.

‘The legislation’ here is the social security legislation covered by Regulation 883/2004. That much is clear, as Article 29 (2) provides that ‘definitions in Article 1 of Regulation 883/2004 shall apply’.  Regulation 883/2004, Article 1 (l) defines ‘legislation’ as ‘laws [etc] relating to the social security branches covered by Article 3 (1)’. Those include ‘(a) sickness benefits (ie healthcare); maternity and equivalent paternity benefits; invalidity benefits; old age benefits (ie pensions) … unemployment benefits, and family benefits’. From the point of view of health, the key things that matter are that healthcare is covered, and also that pensions are covered.

Regulation 883/2004 covers EU citizens, stateless persons and refugees, members of their families, and survivors. It also covers nationals of other countries who are not already covered by the Regulation solely because of their nationality. What is important for cross-border health care is that you do not have to be or have been resident in another Member State to your home country to fall within the scope of the Regulation. It is enough that you are ‘subject to the legislation’ of any Member State. Everyone who meets the UK ordinary residence test for access to the NHS, for instance, is ‘subject to the legislation’ of the UK on this matter. Everyone across the EU, including in the UK, who is entitled to an EHIC card is ‘subject to the legislation’. When you visit another Member State, on holiday or for business, the EHIC card entitles you to emergency care in the country you are visiting.

Unlike the general WA provisions on EU citizenship, which only give rights to those who have exercised their rights to free movement (for instance, by residing in a Member State of which they are not a national), Article 28 (1), read alone, gives rights to everyone who is subject to social security legislation in either the EU27 or the UK.

But – critically in the 15 March draft – people enjoy rights under Title III only ‘for as long as they continue to be in a situation involving both a Member State and the United Kingdom at the same time’ (Article 28 (2)).  It’s difficult to be sure what is intended by this text, but it seems most likely that this is intended to significantly reduce the scope of application of the Title from the original text.  Regulation 883/2004 works by determining everyone who is covered by social security legislation, and then making provision for what happens when someone moves around the EU. The draft text of the Withdrawal Agreement, by contrast, draws its scope on the basis that some people will be ‘in a situation involving both a Member State and the United Kingdom’ at the same time. It is only those people who are intended to be in the scope of the Withdrawal Agreement.

This is an extraordinarily loose piece of drafting. Some people are obviously in such a situation: frontier workers would be an example. Someone who resides in an EU-27 Member State but receives a UK pension, or other benefit, would be another. But what about someone who resides in an EU-27 Member State, receives a UK benefit, and visits another EU-27 Member State? Does the text mean that ‘a Member State’ can only be one Member State (plus the UK); or can it be more than one Member State (plus the UK)? What about someone who resides in an EU27 Member State and regularly visits the UK (or vice versa)? What about someone who intends to do so, even if they don’t regularly do so? All of those people were within the scope of Regulation 883/2004: the text implies that not all will be within the scope of Title III of the WA.  This is further elaborated in Article 29a, which modifies the scope rules in Article 28.

What it might mean for healthcare entitlements is elaborated below.

What the Commission text proposes: what are their rights?

Article 29 no longer talks about ‘rights’ or ‘principles’ applying. Instead, it says that ‘the rules’ set out in Regulation 883/2004, and its implementing legislation Regulation 987/2009, ‘shall apply’. These rules are encapsulated in the principles of portability, aggregation, non-discrimination, and prevention of overlapping benefits/single state rule.  But those principles are no longer explicitly included in the text. An interpretation that suggests that everyone now within the system of EU coordination of social security would continue to be within it under the WA is now not consistent with the WA text. The new Article 29 text ties the application of the rules of the Regulation explicitly to those within the (now more narrowly drawn) scope rules of the Withdrawal Agreement.

And, further, there is a new Article 29a (‘special situations covered’) which derogates from Article 28. It’s unclear whether this derogation is intended to extend the scope of the rules in Article 28, or to narrow them.  In one regard, it extends the scope of the rules, by including some EU-27 nationals/UK nationals who are not ‘subject to’ UK/EU-27 legislation at the end of the transition period, but have been subject to it.  The ‘are or have been’ text of the earlier draft has been moved from Article 28 to Article 29a.

Paragraph 1 (a) of Article 29a derogates from Article 28 (the scope rules) ‘to the extent set out below’, ie in the rest of Article 29a. It extends the scope of the WA to EU citizens who have been subject to UK social security legislation before the end of the transition period, but are no longer subject to that legislation, and vice versa for UK citizens subject to EU-27 social security legislation. Those people fall within the scope of Title III of the citizens’ rights part of the WA, for the purposes of relying on and aggregating periods of insurance, employment, self-employment or residence. This covers an EU-27 citizen who has worked some of her life in the UK, but is now ‘subject to’ the legislation of another EU Member State (either that of which she is citizen, or another one), because she now works there, or resides there. Under the WA, she can rely on the period of time aggregated through the period of employment or residence in the UK for the purposes of receiving benefits (such as healthcare) that are based on aggregated periods of time.  Likewise, a UK citizen who is no longer subject to the legislation of an EU-27 Member State can also rely on the WA to aggregate social security entitlements earned during the time that she was subject the legislation of that Member State.

Article 29a includes a revised and clarified provision on planned healthcare.  It provides that the rules of Regulation 883/2204 (Articles 20 and 27) continue to apply to someone who ‘who has begun a course of planned health care treatment before the end of the transition period in a Member State or in the UK, while that State was not the competent State, until the end of the treatment’ (Article 29a (1) (b)). Reimbursement procedures apply even after the treatment ends. ‘Until the end of the treatment’ is presumably intended to include all phases of treatment, including follow up care. The text does not refer to planned healthcare under the Patients’ Rights Directive; only under Regulation 883/2004. Future access to planned healthcare is not included, unless someone who seeks to access planned healthcare that begins after the end of the transition period can be said to be ‘in a situation involving both a Member State and the United Kingdom’ at the end of the transition period. This might be the case, for instance, if someone’s cross border planned healthcare is part of a clinical trial to which the person is recruited in the run up to the end of December 2020. (Note that some Member States, including the UK, do not authorize experimental treatments under S2.) But otherwise, UK patients seeking planned crossborder healthcare in the EU-27 (and vice versa) after the end of transition will not be within the scope of the Withdrawal Agreement.

The previous text had nothing explicit in the text on EHIC healthcare. This is now covered in Article 29a (1) (c). It provides that the rules on EHIC healthcare apply to ‘a person, covered by Regulation 883/2004, who is staying at the end of the transition period in a Member State or the United Kingdom, until the end of the stay’. This text excludes future application of EHIC rights. As with the provision on planned crossborder health care, its implication is that ‘a situation involving both a Member State and the United Kingdom at the same time’ in Article 28 (2) is not intended to include a future intention to rely on accrued EHIC rights after the end of the transition period.

The provision on healthcare for pensioners has been tidied up (the puzzling word ‘becomes’ has been removed). It’s now in Article 29a (2):

“If, following the grant of a pension or a benefit based on periods of insurance, employment, self-employment or residence in accordance with point (a) of paragraph 1 of this Article,

(a)                the United Kingdom is competent for the sickness benefits of a person residing in a Member State, or

(b)               a Member State is competent for the sickness benefits of a person residing in the United Kingdom,

that person, as well as his or her family members and survivors, shall be entitled to sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant), or Articles 17 to 21, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a person receiving a benefit other than pension). The corresponding reimbursement procedures shall apply.

This provision shall apply mutatis mutandis as regards family benefits based on Articles 67 to 69 of Regulation (EC) No 883/2004.

‘Sickness benefits as set out in Articles 22 to 30, 33 and 34 of Regulation (EC) No 883/2004 (in the case of a pensioner or a pension claimant)’ is healthcare cover for pensioners. Essentially the rules are that if someone is entitled to a pension from at least one Member State, they are entitled to receive healthcare in another Member State in which they reside, on the same basis as the residents of that Member State. The costs of the healthcare are borne by the Member State responsible for the pension. This is the basis of the S1 scheme. They are also entitled to EHIC health care, or, with authorization, planned care under the S2 scheme, in a Member State which they visit.

As originally drafted the provision didn’t explicitly deal with the UK pensioners who have worked all their life in the UK, and then retired to Spain (or another EU country): the biggest group of recipients of cross-border health care who are concerned about the effects of Brexit. It still doesn’t do so explicitly. But they fall within the scope of the Withdrawal Agreement (Article 28) because they are ‘subject to’ the social security legislation under Regulation 883/2004, and are in a ‘situation involving both a Member State and the UK at the same time’ at the end of the transition period. They will be able to continue to rely on their rights under the WA, until they cease to meet those conditions. This is good news, not only for those pensioners, but also for the NHS which will not have to plan for their mass return.

What the Commission text proposes: the time frame

Most of the provisions in the WA have a tight temporal limitation: they cease at the end of the transition/implementation period. In this draft, unlike the earlier one, a similar temporal limitation has been added to Title III on social security coordination. The general rule is that it continues as long as someone continues to be in a situation involving both a Member State and the UK at the same time.  For UK pensioners accessing healthcare in Spain, that will potentially be the rest of their lives (Article 35), unless they return to the UK.  But Article 29a precludes an interpretation of the general rule to include post-transition planned healthcare or emergency healthcare under EHIC. 

Conclusion and implications

Continued access to the EHIC scheme is something that both Jeremy Hunt and David Davis have said that the UK would seek to negotiate. Indeed, Jeremy Hunt described it as ‘perfectly possible’ in January 2017; and Davis said in Parliament that it had been ‘agreed’ in August 2017. Presumably it could be negotiated as part of the future EU-UK relationship(s), and that would cover people not within the scope of the Withdrawal Agreement (for instance, because they are yet to be born). However, as I suggested in my previous blog, it would be better if it were included in the Withdrawal Agreement too.

Barnard & Peers: chapter 27

Photo credit: Sutter Healthcare