Tuesday, 29 December 2020

Analysis 1 of the Brexit deal: Healthcare entitlements in the EU-UK Trade and Cooperation Agreement


 


 

Professor Tamara Hervey, University of Sheffield

 

What – if any – entitlements to healthcare are covered by the EU-UK Trade and Cooperation Agreement, agreed in principle on 24 December 2020? (For an overview of the agreement as a whole, see Steve Peers’ Twitter thread and the overview on this blog). (Update: later blog posts cover human rightsdispute settlement and environment and climate change in the Brexit deal).

 

Introduction

 

If there are any, they will be found in the provisions on social security coordination (Heading Four: Social security coordination and visas for short-term visits). This is the equivalent of – but, as we will see, in many respects a weak equivalent of – the provisions of EU law on social security coordination. On the other hand, these are not ‘ordinary trade agreement’ provisions: there’s nothing like this in CETA for instance.

 

Those provisions of EU law include access to healthcare for EU citizens, and their families (irrespective of citizenship), who are resident in a Member State other than the ‘competent state’ for the purposes of social security coverage, and also access to healthcare necessary during a ‘stay’ (a short-term visit, not establishing a new place of residence) in another Member State. It is this latter provision that is covered by the European Health Insurance Card (EHIC) scheme.

 

Many people want to know whether the EHIC scheme or a version of it will continue. For many people, especially elderly people, private health insurance for travel is unaffordable (health insurance companies take EHIC into account when calculating premiums) and in some cases not available. For people who have been accustomed to regularly visiting family or friends in the EU or UK, EHIC or not will make a significant difference to how they live their lives after end December 2020.

 

But in order to answer that question, I need to work through the legal text methodically, and that is what this blog does. There are multiple parts of the legal text that apply to the coordination of social security: a chapter in the main text, a Protocol, and several Annexes. I am setting out my reasoning step by step so that others can check it.

 

Interpretation and enforcement

 

The wording of the parts of the Agreement on social security coordination is complex, hard to follow, and likely to be subject to disagreement. The analysis that follows is my best-attempt on a first take: I may be wrong. In some respects, the wording of the Agreement is also opaque: in part this is because the relevant equivalent provisions of EU law and of the Withdrawal Agreement, on which this part of the Agreement draws, are also opaque. (Remember that the Withdrawal Agreement remains in force separately, including its provisions on EU citizens in the UK and UK citizens in the EU, discussed here).  That is why I’m starting this analysis with some words on interpretation and enforcement of the parts of the Agreement on social security coordination.

 

The Preamble to the Agreement recognises that social security coordination is important to human beings, not just those who are migrating as ‘economic entities’ (providing services, for example), but also their families. The Preamble also recognises that social security coordination applies not just to people who move between the UK and the EU to reside, but also to stay:

 

Preamble: “RECOGNISING the importance of the coordination of social security rights enjoyed by persons moving between the Parties to work, to stay or to reside, as well as the rights enjoyed by their family members and survivors,”

 

Provisions of the Preamble of an international agreement are an important reference point when it comes to interpretation of that agreement. Interpretation of the EU-UK Trade Agreement (‘the Agreement’) is to be in accordance with international law (not EU or UK law). This approach includes taking account of the context of the legal text, and the ‘object and purpose’ of the Agreement as a whole. It is possible – and perhaps in the context of the social security coordination rules, likely – that the interpretation of the provisions of the Agreement on social security coordination will differ between the UK and the EU Member States. In the context of this Agreement, there is nothing like the Court of Justice of the EU, or the EFTA Court, to seek to prevent such divergent interpretation:

 

TITLE II: PRINCIPLES OF INTERPRETATION AND DEFINITIONS

 

Article COMPROV.13: Public international law

 

1. The provisions of this Agreement and any supplementing agreement shall be interpreted in good faith in accordance with their ordinary meaning in their context and in light of the object and purpose of the agreement in accordance with customary rules of interpretation of public international law, including those codified in the Vienna Convention on the Law of Treaties, done at Vienna on 23 May 1969.

 

2. For greater certainty, neither this Agreement nor any supplementing agreement establishes an obligation to interpret their provisions in accordance with the domestic law of either Party.

 

3. For greater certainty, an interpretation of this Agreement or any supplementing agreement given by the courts of either Party shall not be binding on the courts of the other Party.

 

The agreement will, however, be interpreted by the courts in the UK and the EU separately, and is subject to the treaty’s dispute settlement process (as noted below).

 

The EU Member States and the UK are obliged to ‘coordinate’ their social security systems, in accordance with the Protocol on Social Security Coordination. The object and purpose of this coordination is ‘in order to secure the social security entitlements of the persons covered therein’ (Ch.SSC.1).

 

This is one of the few parts of the Agreement that has individual human beings as its focus. In general, the Agreement does not confer rights or impose obligations on human beings or legal persons. There is no provision for directly invoking the Agreement in domestic law. The Agreement is an instrument of international law, conferring obligations on the Parties to the Agreement (the EU, its Member States and the UK). It is totally different to EU law in this regard. It is also totally different to the Withdrawal Agreement, which includes a significant number of citizens’ rights provisions, and special measures for its enforcement.

 

Article COMPROV.16: Private rights

 

1. Without prejudice to Article MOBI.SSC.67 [Protection of individual rights] and with the exception, with regard to the Union, of Part Three [Law enforcement and judicial cooperation], nothing in this Agreement or any supplementing agreement shall be construed as conferring rights or imposing obligations on persons other than those created between the Parties under public international law, nor as permitting this Agreement or any supplementing agreement to be directly invoked in the domestic legal systems of the Parties.

 

2. A Party shall not provide for a right of action under its law against the other Party on the ground that the other Party has acted in breach of this Agreement or any supplementing agreement.

 

The social security rights under the Agreement must be protected by each Party’s domestic legal order. The Parties have agreed that human beings (and companies) must be permitted, by domestic law (not by the Agreement itself) to invoke the provisions of the Agreement before domestic courts, tribunals and administrative authorities, and thus to seek ‘adequate and timely’ remedies for any breach. The word ‘and’ suggests that courts and tribunals must be included in the arrangements made for enforcing social security coordination rights under the Agreement, and that only providing for an administrative process, such as Ombudsman or other complaints process, would not be compliant with the Agreement.

 

TITLE V: FINAL PROVISIONS

 

Article SSC.67: Protection of individual rights

 

1. The Parties shall ensure in accordance with their domestic legal orders that the provisions of the Protocol on Social Security Coordination have the force of law, either directly or through domestic legislation giving effect to these provisions, so that legal or natural persons can invoke the said provisions before domestic courts, tribunals and administrative authorities.

 

2. The Parties shall ensure the means for legal and natural persons to effectively protect their rights under this Protocol, such as the possibility to address complaints to administrative bodies or to bring legal action before a competent court or tribunal in an appropriate judicial procedure, in order to seek an adequate and timely remedy.

 

In the UK, such a process for protection of individual rights is likely to be through the Social Security and Child Support Tribunals, in the first instance, with appeal to the Upper Tribunal (Administrative Appeals Chamber). Note that the draft UK bill giving effect to the TCA simply copies its social security provisions into domestic law (clause 26).

 

Who is covered?

 

The Protocol on Social Security Coordination applies only to ‘situations arising between one or more Member States of the Union and the United Kingdom’ (Ch.SSC.3 (1)). People whose situations are confined in all respects to either the UK or the EU Member States fall outside the scope of the Protocol (Ch.SSC.3 (2)). There is no further definition of this scope rule. Do I fall within the scope of the Protocol if I visit the EU from the UK? If I’m providing a service under the Agreement’s provisions on services (eg SERVIN 4.1, 4.2, 4.3, 4.4, on performance of economic activities through the entry and temporary stay in the territory of the EU/UK of natural persons of the UK/EU, who are business visitors for establishment purposes, contractual service suppliers, independent professionals, intra-corporate transferees and short-term business visitors), then it would seem obvious that I fall within the scope of the Protocol. Equally, I would argue that if I am visiting the UK from the EU or the EU from the UK, as a tourist, or for other non-economic reason (eg to visit family or friends), on the basis of the visa-free travel provided for under the Agreement (Article VSTV.1), I also fall within its scope.

 

But this looks suspiciously like a continuation of aspects of free movement of persons, an inseverable part of the disciplines of the internal market, according to the EU’s negotiating position. My counter-argument to that position is that the coordination of social security, while linked to the internal market as it supports free movement of persons in practice, is not an integral part of harmonised internal market law in the way that the EU law provisions on entry, residence or non-discrimination in employment or self-employment rights are. This interpretation is supported by the fact that the Agreement includes provisions on entitlement to social security benefits (healthcare under a national health system) during a stay in the UK/an EU Member State (see further below).

 

The definition of who is covered by the Protocol on Social Security Coordination is based on the EU law on coordination of social security: people who are ‘subject to’ the social security legislation of one or more States (the UK, EU Member States), their families and their survivors (Article SSC.2 of the Protocol). Curiously, ‘subject to’ is not further defined, either in this Agreement, or in the Withdrawal Agreement, or in EU Law. In many situations, being ‘subject to’ social security legislation will be obvious: if one is paying social security contributions (eg for a pension), or receiving benefits (eg for invalidity or unemployment), then one is obviously ‘subject to’ the legislation. But in other situations, it is less obvious. Is someone who contends that they fall within the scope of the relevant social security rules ‘subject to’ those rules? The Agreement includes some provision on what happens if there is disagreement about whether someone falls within its scope (see below).

 

The Agreement further specifies that, in principle, the Protocol on Social Security Coordination applies only to people who are lawful residents of the UK or an EU Member State (Ch.SSC.2 in the main Agreement). But this rule does not affect ‘entitlements to cash benefits which relate to previous periods of legal residence of persons covered by Article SSC.2’). So someone might no longer be lawfully resident in the EU or UK, but still fall within the scope of who is covered by this part of the Agreement, for example if they are entitled to pension benefits under the Agreement, but live outside of the EU and UK.

 

What is covered?: General rules

 

The Protocol on Social Security Coordination covers all the main branches of social security that are covered by EU law and by the Withdrawal Agreement. These include ‘sickness benefits’ (Article SSC.3 (1) (a)) (in cash or in kind) – that is, medical treatment. Like in EU law and the Withdrawal Agreement, medical assistance is not covered (Article SSC.2 (4) (b)). Neither is voluntary social insurance, unless it is the only social insurance scheme for the particular branch of social security in the relevant State (Article SSC.13). Neither are ‘assisted conception services’ (Article SSC.3 (4) (e)), defined as ‘any medical, surgical or obstetric services provided for the purpose of assisting a person to carry a child’ (Article SSC.1 (c)). Just to be clear, Article SSC.5 explicitly excludes the matters listed in Article SSC.3 (4) from the general non-discrimination principle (Article SSC.5).

 

EU Member States and the UK may charge a health fee as part of an application to enter, stay, work or reside in that State (Ch.SSC.4). But given that, at least until due notification is given, and if possible at least 3 months before a requirement for visa for a a short-term visit take effect, visa-free travel for short term visits applies between the UK and EU Member States (Article VSTV.1), I think that this provision must apply in practice, at least in the short term, only to applications for residence or work permits, not for visitor entry or short-term visits.

 

The general rules (and there are exceptions) for the Protocol are that (Article SSC.4) social security coordination rules are on the basis of non-discrimination between Member States of the EU. However, this rule is without prejudice to the Common Travel Area arrangements between the United Kingdom and the Republic of Ireland. To access Irish state healthcare, UK nationals need show either an EHIC, or proof of their UK residence. This continuation of the existing rules from 1 January 2021 is confirmed in the UK government’s website.

 

In general (again there are exceptions), the people who are covered by the Protocol enjoy the same benefits (and are subject to the same obligations) as the nationals of the relevant State (Article SSC.5). In general, the Protocol applies a principle of ‘equal treatment of benefits, income, facts or events’ (Article SSC.6).

 

There are two key aspects to this. First, if receipt of social security benefits (or income) has certain legal effects in one State, that State must also recognise equivalent benefits (or income) acquired under the legislation of another state. Second, where legal effects flow from facts or events taking place in one State, that State must take into account ‘like facts or events’ taking place in another State, as if they had taken place on the territory of the first State (Article SSC.6 (a) and (b)). In general, the Protocol requires the aggregation of periods of social insurance, employment, self-employment or residence, completed in any of the States Parties to the Agreement (Article SSC.7). There is a whole section of ANNEX SSC-7: Implementing part on specifics of the aggregation rules (Article SSCI.11 and 12). In general, receipt of cash benefits under the Protocol must not be made conditional on residence (Article SSC.8). All of these provisions are similar to those in the Withdrawal Agreement (Article 31 WA) and in EU law (Regulation 883/2004/EC, Articles 4,5,6,7).

 

Again, as in the Withdrawal Agreement and in EU law, the ‘single state rule’ applies. In general, ‘persons to whom this Protocol applies shall be subject to the legislation of a single State only’ (Article SSC.10). The starting point here is employment or self-employment, and only if neither applies does residence become relevant. If someone is employed or self-employed in a State, that State is the State whose social security legislation they are ‘subject to’ (Article SSC.10 (3) (a) (b)). There are rules for people who normally are employed in both the UK and one or more EU Member States (Article SSC.12): basically if someone is resident where they perform a substantial part of their work, that is the relevant state; if not, the place in which the employer is registered; or the ‘centre of interest’ of the activities of a self-employed person is the relevant state. There is, obviously, lots of room for interpretation of these rules in specific situations.

 

If someone is neither employed nor self-employed, the general rule is that their residence (which means ‘where the person habitually resides’ Article SCC.1 (aa)) determines the relevant State. There is a whole section of the ANNEX SSC-7: Implementing part on the elements for determining residence (Article SSCI.10). There are special rules for people who work on ships and aircraft (Article SSC.10 (4) and (5)).  

 

Like many international agreements, the Protocol on Social Security Coordination allows for States Parties to derogate from its general terms in some respects. The Protocol allows Member States to derogate from the single state rule for ‘detached workers’ (Article SSC.11). ‘Detached workers’ are either employed by an employer in a State which normally carries out its activities there, and sent by their employer to another State to work on the behalf of that employer; or self-employed and normally pursuing a self-employed activity in one State, and who go to another State to pursue a similar activity (Article SSC.11 (1) (a) and (b)). There is no list of these Member States yet in the text (see p 1246). Article SSC.11 obliges the European Union to notify the UK, by the time the Agreement enters into force, whether each Member State falls into one of three categories: A: the Member State wishes to derogate from the general rules of the Protocol on which state is the state responsible for social security (Article SSC.10); B: the Member State does not wish to so derogate; or C: the Member State has not indicated either A or B. That list of three categories of Member States will become Annex SSC-8, when the Agreement enters into force. One month later, categories B and C will cease to exist. Member States in category C will be deemed to be in category A for one month. After that, such a Member State can join category A by the Union notifying the new Specialised Committee on Social Security Coordination (see below) to that effect. A Member State can leave category A in the future by the same mechanism. For Member States in category A, transitional rules for ‘detached workers’ will apply for a 24 month transitional period.

 

This is one of a myriad of examples of Brexit not being ‘done’.

 

What is covered? ‘Sickness benefits’

 

Title III of the Protocol sets out special provisions for each category of benefits (pensions, unemployment benefit and so on). Chapter 1 concerns sickness benefits. Like in EU law, there is a set of rules for ‘insured persons’ (people ‘subject to’ social security legislation of the ‘competent state’, and members of their families) and a separate set of rules for pensioners and members of their families.

 

‘Insured persons’ and their families who are resident in a State other than the competent state, are entitled to receive in the State of residence ‘sickness benefits in kind’ provided by the ‘institution of the place of residence’, as though those people were insured under the legislation of the place of residence (Article SSC.15; Article SSC.21 (pensioners)). People in this category include frontier workers (who live in one state and work in another – special rules apply to them (Article SSC.16)); posted workers (who are sent by their employer to work in another state); and also people who return home for intervals longer than a week (the frontier worker definition).

 

So, if someone is ‘subject to’ UK social security legislation for the purposes of receiving healthcare in the UK, because under the UK legislation they are deemed ‘resident’ in the UK (that being the national rule determining access to the NHS), and they are employed or self-employed in the UK (see the single state rules above), but they are also deemed ‘resident’ in Spain by Spanish legislation, because they are in Spain sufficiently to count as ‘resident’ under Spanish legislation, this provision of the Protocol entitles them to access Spanish healthcare as if they were insured under the Spanish legislation. These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 17 and 18, 23-26).

 

Articles SSC.17 and SSC.25 (pensioners) cover ‘stay’ outside the competent State. This is the equivalent of the EHIC provision in EU law. It entitles an insured person, and members of their family, who are staying in a state other than the competent state, to healthcare which becomes necessary on medical grounds during their stay. The determination of necessity must take account of the nature of the healthcare or medical treatment and the length of the stay. It is the healthcare provider in the state providing the healthcare that determines necessity. The entitlement under Article SSC.17 or SSC.25 does not cover someone who travelled with the purpose of receiving the healthcare or medical treatment. (There is an exception for a passenger or someone working on a ship or aircraft, who became ill during the voyage or flight). These provisions are almost identical to the equivalent provisions of EU law (Regulation 883/2004, Articles 19 and 20, 27).

 

Healthcare provided under these provisions must be fully reimbursed by the competent State (Article SSC.30).

 

What is different from EU law is that a person seeking to receive healthcare or medical treatment during a stay outside the competent state must present a ‘valid entitlement document’. The entitlement document is covered in Appendix SSCI-2. For EU Member States, the valid document is essentially the EHIC: it has to comply with the technical specifications of the relevant EU law determining EHIC cards (Decision No S2 of 12 June 2009 of the Administrative Commission concerning the technical specifications of the European Health Insurance Card) (Appendix SSCI-2 1). For the UK, the entitlement document has to contain the following information ((Appendix SSCI-2 2):

 

(a) surname and forename of the document holder;

(b) personal identification number of the document holder;

(c) date of birth of the document holder;

(d) expiry date of the document;

(e) the code “UK” in lieu of the ISO code of the United Kingdom;

(f) identification number and acronym of the United Kingdom institution issuing the document;

(g) logical number of the document;

(h) in the case of a provisional document, the date of issue and date of delivery of the document, and the signature and stamp of the United Kingdom institution.

 

The UK must notify the Specialised Committee on Social Security Coordination ‘without delay’ of the technical specifications of the UK document ((Appendix SSCI-2 3).

 

The UK government’s website explains that people who have valid EHICs will be able to continue to use them from 1 January 2021, to access necessary healthcare on a visit to an EU country. For Norway, Iceland, Liechtenstein and Switzerland, a new GHIC (UK Global Health Insurance Card) is available. When someone’s EHIC expires, they will be able to apply for a GHIC for free.

 

Appendix SSCI-2 confirms that the entitlements under Article SSC.17 of the Protocol on Social Security Coordination include medical treatment for pre-existing illnesses and chronic conditions, as well as medical treatment in conjunction with pregnancy and childbirth, unless the purpose of the trip is to receive these treatments (see p 1244). But for vital medical treatment that is only available through a specialised medical unit, authorisation in advance is required before the trip. This includes (but is not limited to)

 

(a) kidney dialysis;

(b) oxygen therapy;

(c) special asthma treatment;

(d) echocardiography in case of chronic autoimmune diseases;

(e) chemotherapy.

 

So some medical treatments that used to be available under the EHIC scheme will after 31 December 2020 only be available if the relevant State (the UK or EU Member State) gives prior authorisation. This will be the case, for instance, for UK patients accessing kidney dialysis in EU Member States. As far as I am aware, the UK has not yet indicated whether it will authorise such treatments, or under what conditions.

 

As in EU law, there is scope for authorisation of medical treatment in another State under the Agreement. The UK used this provision infrequently when it was an EU Member State. Some Member States, eg Malta, rely on it significantly. If authorised, there is an obligation on the healthcare institution of the place to which the person authorised travels to provide the medical treatment authorised as if the person was insured in that State (Article SSC.18). There is also, as in EU law, in effect an obligation to grant authorisation ‘where the treatment in question is among the benefits provided for by the legislation in the State where the person concerned resides and where that person cannot be given such treatment within a time limit which is medically justifiable, taking into account their current state of health and the probable course of their illness’ (Article SSC.18). This provision also gives entitlements to family members of the ‘insured person’. There is provision for if the family members and the insured person reside in different States.

 

This provision (the ‘S2’ in EU law, Regulation 883/2004, Article 20) is used relatively infrequently between Great Britain and the EU, but several hundred people a year do rely on it to receive health care across the border between Northern Ireland and the Republic of Ireland. The question of whether a time limit before which someone receives treatment is ‘medically justifiable’ is obviously contentious. When the UK was an EU Member State, EU law was used to seek judicial review of this question, and a number of English NHS Hospital Trusts reduced waiting times for elective procedures such as hip replacements in response. Apparently there is ongoing litigation in Northern Ireland which seeks judicial review of the NHS there for breaching waiting time limits, in part relying on EU law. Given the COVID-19 context, we might see further attempts to use litigation before domestic courts in a similar way in the future – reliant on the domestic legislation implementing the Agreement, rather than the Agreement itself.

 

Article SSC.19 makes provision for those States which provide cash benefits for healthcare, rather than benefits in kind. This is the direct equivalent to the relevant provision of EU law (Regulation 883/2004, Article 21).

 

Implementation, Administrative Arrangements and Dispute Settlement

 

Annex SSC-7: Implementing Part sets out significant detail on the practicalities of implementing the parts of the Agreement on Coordination of Social Security. There is an obligation on the UK and the EU Member States to ‘provide or exchange all data necessary for establishing and determining the rights and obligations of persons to whom the Protocol applies’ and to do so ‘without delay’ (Article SSCI.2). A Specialised Committee on Social Security Coordination is empowered to authorize – if it so decides – the use of the EU’s Electronic Exchange of Social Security Information for exchange of information. If this decision is taken, the rules applying to that system (which are rules of EU law) will apply (Article SSCI.4 (2)).

 

There is an obligation to make sure necessary information is made available, so that people concerned are able to assert their rights under the Protocol and Annex (Article SSCI.3 (1). Information must be forwarded, and documents issued, ‘without delay’ and in accordance with any time limits specified in national legislation (Article SSCI.3 (3)).

 

If a decision is made to refuse benefits, reasons must be given, and information communicated about remedies and time periods for appeals (Article SSCI.3 (3).

 

Where there is a difference of views between States on what is the applicable legislation or on which is the competent state which is responsible for providing cash benefits or benefits in kind (eg medical treatment), there is an obligation under the Agreement to provisionally apply the legislation of one State (Article SSCI.6 (1) and (2)). For determining applicable legislation, this State is the state where the person actually pursues employment or self-employment, if there is such a state; or the state of residence if the person concerned pursues employment or self-employment in two or more States and performs part of their activity or activities in the State of residence, or if the person concerned is neither employed nor self-employed. In all other cases, it is the State to which a claim was first made, if the person pursues an activity, or activities, in two or more States.  For determining the competent state, the legislation of the person’s place of residence applies or, if that person does not reside on the territory of one of the States concerned, that person is provisionally entitled to the benefits provided for by the legislation applied by the institution to which the request was first submitted.

 

These provisions mean that people should not be left in limbo while complex cases are decided.

 

There is provision for bilateral procedures between States to depart from those in the Annex, provided that they do not have an adverse effect on people’s rights (Article SSCI.8). The bilateral procedures have to be notified to the Specialised Committee on Social Security Coordination and listed in the Appendix SSCI-1, thus securing (at least some) transparency. Any pre-existing bilaterals serving the same or similar purposes to the social security provisions in the Agreement will continue to apply, but they must also be listed in Appendix SSCI-1.

 

Finally, the Agreement includes provisions for a Specialised Committee on Social Security Coordination, which addresses matters covered by Heading Four of Part Two and the Protocol on Social Security Coordination (INST.2 (p)); and for Parliamentary Cooperation and participation of civil society (INST.5; INST.6; INST.7).  These will be important sites for scrutiny of compliance with the Agreement, any future divergence in interpretation of obligations, and (given that the role for an over-seeing court is non-existent) for legal contestation. It will be important to ensure that the UK Parliament, and, where appropriate the Parliaments in Northern Ireland, Scotland and Wales exercise oversight over executive powers; and to ensure that relevant NGOs are represented in the civil society processes.

 

Article INST.2 (2) … Specialised Committees shall have the power to: (a) monitor and review the implementation and ensure the proper functioning of this Agreement or any supplementing agreement; … (c) adopt decisions, including amendments, and recommendations in respect of all matters where this Agreement or any supplementing agreement so provides or for which the Partnership Council has delegated its powers to a Specialised Committee in accordance with point (f) of Article INST.1(4) [Partnership Council]; (d) discuss technical issues arising from the implementation of this Agreement or any supplementing agreement; (e) provide a forum for the Parties to exchange information, discuss best practices and share implementation experience; (f) establish, supervise, coordinate and dissolve Working Groups; and (g) provide a forum for consultation pursuant to Article INST.13(7) [Consultations] of Title I [Dispute Settlement] of Part Six.

 

The Specialised Committee on Social Security Coordination will have power to make recommendations (which have no binding force) and decisions, by mutual consent (INST.4) Decisions adopted by the Specialised Committee on Social Security Coordination will have binding force on the Parties to the Agreement (INST.4). The Committee will make decisions, for instance, on ‘the structure, content and format of forms and documents issued on behalf of the States for the purposes of implementing the Protocol’ (Annex SSC-7, Article SSCI.4 (1)). The Committee is tasked with reconciling differing points of view on ‘information provided by the persons concerned, the validity of a document or supporting evidence or the accuracy of the facts on which the particulars contained therein are based’ (Article SSCI.5 (4).

 

The Agreement’s general provisions on dispute settlement also apply to the social security coordination provisions (Article INST.10: Scope), although not in individual cases (Article INST.10(5)). Note that it's not possible, in the event of a successful complaint by one party about breach of the treaty, to retaliate by suspending the social security provisions (Article INST.24(3)(b)). This also applies to successful complaints about breaches of the withdrawal agreement (Article INST.24(4)).  Other people will already have written about this – but the basic message here is that this is international law, not anything like EU law.

 

Conclusion

 

In summary, this is a significantly better settlement than No Deal at the end of transition would have been, from the point of view of people who relied on EU law to receive healthcare and medical treatment in the UK or an EU Member State.

 

For UK/EU residents, in the EU/UK access to healthcare continues on the same basis as national residents, as before. For visitors, a form of EHIC entitlements are preserved going forward.

 

What is different is the legal basis on which these rights are enjoyed, with corresponding implications for how rights are enjoyed and enforced. All will be well so long as the parties to the Agreement comply with their obligations under it.

 

* This post was amended on January 1, 2021, to add details about the absence of a power to suspend the social security provisions pursuant to the dispute settlement rules, and on January 2, 2021 to add a link to the overview of the trade and cooperation agreement published on this blog.   


Barnard & Peers: chapter 27

Photo credit: Health Europa





2 comments:

  1. Thank you very much for this Blog. I have been wading through this section of the TCA for comparison with EU Regulation 883/2004 plusthe SERVIN sections, as these are relevant to my own business. Your explanation is a great help!

    ReplyDelete
    Replies
    1. Glad to have been of help, and hope I've got everything right!

      Delete