Tamara K Hervey, Jean Monnet Professor of EU Law, University of Sheffield
This article provides an initial examination of the European Commission’s draft Withdrawal Agreement and its effects on health-related issues, particularly concerning individuals.
The focus here is on patient rights, specifically reciprocal healthcare between the UK and the remaining 27 EU members post-Brexit. Two significant issues are explored:
The future of UK pensioners residing in or planning to retire in other EU countries.
The European Health Insurance Card (EHIC) for emergency medical assistance when visiting other EU countries and vice versa.
While Brexit’s impact on health and people encompasses NHS and social care staffing, this analysis concentrates on patient rights. Existing analyses address the position of EU/EEA nationals working in the UK’s health and social care sectors under the Withdrawal Agreement (WA), as their situation aligns with that of EU/EEA nationals in other UK economic sectors.
This draft legal text marks the first opportunity for analysis beyond the transitional period clauses. The complexity of the text means a complete understanding of its implications will take time. This analysis is a preliminary assessment and open to correction.
Negotiations surrounding the UK’s exit from the EU are ongoing, and the EU-27 Council has yet to adopt this text, let alone reach a consensus with the UK. Therefore, it’s crucial to remember that nothing is finalized until all parties agree. Planning for a ’no-deal’ Brexit scenario, where the UK departs without a Withdrawal Agreement, remains prudent.
Ideally, this analysis would include a comparison with the UK’s preferred legal text, which is currently unavailable. The Prime Minister’s recent speech on March 2, 2018, doesn’t explicitly address reciprocal healthcare. However, one of the PM’s ‘five tests’ - “reaching an enduring solution” - is pertinent. The European Commission’s proposed text suggests that certain health-related aspects of the EU-UK relationship could endure significantly longer than anticipated if the UK agrees to it.
Timeline:
The text presents three distinct periods, each with its own set of legal rights and duties:
The present (during the UK’s EU membership).
A transition period (termed ‘implementation’ by the UK government) commencing upon the WA’s enactment on March 30, 2019, and concluding on December 31, 2020.
The period following the transition.
Regardless of the final agreed-upon dates, these three timeframes introduce legal complexity. Understanding individual rights, enforcement mechanisms, and the obligations of governments (both UK and EU-27) will pose a challenge.
Within the proposed WA text, a fourth timeframe appears implicitly—extending far into the future—where no further rights or obligations are applicable.
Current Situation:
Patients currently benefit from cross-border healthcare rights within the EU under four primary arrangements: S1 for residents in another EU country; S2 and the Patients Rights Directive for pre-arranged care; and EHIC for visitors. Since access to the UK’s NHS hinges on residency, rather than tax or social security contributions, EU/EEA nationals satisfying the NHS ‘ordinary residence’ test essentially possess domestic legal rights. (Note that these rules apply to England; Scotland, Wales, and Northern Ireland have different regulations.)
These EU law entitlements function through the coordination of diverse social security systems across the EU. While part of EU law on free movement and citizenship, they don’t rely on harmonized national regulations. Instead, EU coordination mechanisms facilitate cross-border movement for work, education, retirement, or visits. These mechanisms shield individuals from complications stemming from differing social security and benefits access, including healthcare.
Imagine an EU citizen and their family moving within the EU for work, contributing to the social security system of each country. As they relocate, they accumulate a metaphorical “backpack” of benefits, which they can utilize when needed, such as during retirement, illness, or unemployment (principles of ‘portability’ and ‘aggregation’). Additionally, when an EU citizen is in an EU country other than their ‘home’ country, they are treated as a national of their current location (principle of non-discrimination).
To avoid benefit duplication or gaps, each individual has a designated ‘competent state’ responsible for payment, regardless of the benefit provider or treatment location (the ‘single state rule’).
For instance, British pensioners residing in Spain can access the Spanish healthcare system based on their UK work contributions. The UK covers the costs, Spain provides the care, and it’s delivered on par with Spanish nationals.
A complex system of administrative arrangements, facilitated by the EU, supports this framework. An Administrative Commission, comprising representatives from each Member State and the European Commission, manages administration, interpretation, and promotes collaboration. This Commission relies on national competent authorities that exchange information for effective coordination. An Electronic System, adhering to EU data protection law, facilitates this information exchange.
Due to their complexity, these social security coordination rules often face litigation. The Court of Justice of the European Union (CJEU) frequently interprets their meaning.
Proposed Coverage in the Commission Text:
The scope of citizens’ rights provisions under Title I of Part Two of the draft WA has garnered considerable attention, but for our purposes, it’s crucial to note that Title III on social security systems operates independently of these provisions.
Therefore, if the WA is agreed upon as proposed, two distinct groups will emerge: those with residency, employment, and equality rights (with some exceptions), and those with rights under social security coordination. An individual may belong to both groups.
This complexity will likely make it challenging for individuals to determine their rights.
Article 28 outlines the proposed coverage, mirroring the text of the EU Regulation 883/2004, Article 2. It encompasses individuals “subject to the legislation” of either the UK or an EU-27 Member State, referring to social security legislation as defined by Regulation 883/2004. This includes healthcare, maternity and paternity benefits, invalidity benefits, pensions, unemployment benefits, and family benefits. Healthcare and pensions are particularly relevant in this context.
Regulation 883/2004 covers EU citizens, stateless individuals, refugees, family members, and survivors, as well as nationals of other countries not already covered solely by their nationality. Importantly for cross-border healthcare, residency in another Member State isn’t required to fall under the Regulation. Individuals meeting the UK’s ordinary residence test for NHS access, for instance, are considered “subject to the legislation.” The same applies to anyone across the EU entitled to an EHIC card.
Unlike the general WA provisions on EU citizenship, which grant rights only to those who have exercised free movement (e.g., residing in a Member State where they aren’t a national), these provisions extend to everyone subject to social security legislation in either the EU-27 or the UK.
Proposed Rights in the Commission Text:
Article 28 (4) ensures the continued aggregation of rights accrued through social security contributions for EU citizens, UK nationals, and others who worked or resided in an EU Member State or the UK before the transition period ends. Article 29 reinforces this, stating that all “rights and principles” of Regulation 883/2004 and EU social security coordination legislation “shall apply,” explicitly including portability, aggregation, non-discrimination, and the prevention of benefit overlap (single state rule).
Logically, this means that individuals within the scope of this part of the WA (those with accrued rights before the transition period ends) retain their existing EU law rights, even after the transition. EU-27 nationals and others in the UK could rely on benefits earned while working in EU-27 Member States, provided they are lawfully residing in the UK as stipulated in other parts of the WA.
Furthermore, these individuals could continue accessing existing pathways for planned cross-border healthcare (S2 and the Patients Rights Directive). UK pensioners in Spain, for example, could still utilize the S1 scheme. Crucially, EU-27 visitors to the UK and UK nationals visiting the EU-27 (and others covered by this part of the WA) could continue using their EHIC cards for emergency, unplanned care.
In essence, the current system of EU social security coordination would persist for those already within it. However, this interpretation becomes less clear when considering cross-border healthcare within Article 29.
Article 29 (4) addresses planned healthcare, stating that individuals who began medical treatment in a Member State other than their ‘competent’ state before the transition period ends “shall have the right to continue the treatment until its end,” encompassing all treatment phases, including follow-up care. The text focuses on planned healthcare under Regulation 883/2004, not the Patients’ Rights Directive, implying that access to planned healthcare initiated after the transition period may not continue.
The text doesn’t explicitly address EHIC healthcare.
However, Article 29 (4) addresses healthcare for pensioners, stating:
“If, following the grant of a benefit based on the periods of insurance, employment, self-employment or residence in accordance with Article 28(3) of this Agreement, the United Kingdom becomes competent for the healthcare cover of a Union citizen, or a Union Member State becomes competent for the health care cover of a United Kingdom national, that Union citizen or United Kingdom national shall be entitled to healthcare cover as set out in Articles 24 to 30 of Regulation (EC) No 883/2004 and the corresponding reimbursement procedures shall apply between the United Kingdom and the Member State.”
“Healthcare cover set out in Articles 24 to 30 of Regulation 883/2004” refers to healthcare for pensioners. Essentially, individuals entitled to a pension from at least one Member State can receive healthcare in another Member State where they reside, under the same conditions as residents of that Member State. The Member State responsible for the pension bears the healthcare costs. This is the foundation of the S1 scheme.
The use of “becomes” requires clarification. A Member State “becomes” “competent for healthcare cover” when someone fulfills their national healthcare system’s coverage criteria. However, Article 29 (4) pertains to a Member State “becoming” competent due to (“following”) the grant of another benefit, in this case, pensions.
Moreover, the provision seemingly applies only when “the United Kingdom becomes competent for the healthcare cover of a Union citizen, or a Union Member State becomes competent for the health care cover of a United Kingdom national.” It doesn’t appear to cover situations like a lifelong UK worker retiring in an EU-27 Member State. The UK has always been competent for that individual’s healthcare; it hasn’t “become” competent.
Therefore, Article 29 (4) seemingly addresses individuals in a cross-border situation: EU-27 nationals moving to the UK (falling under the NHS’s responsibility) or UK nationals moving to an EU-27 country, subsequently retiring and seeking healthcare as if current EU law still applied. These individuals would retain their current rights. For example, EU-27 nationals working in the UK could retire in their home country or another EU Member State, with healthcare covered by the UK. Similarly, UK nationals working in an EU-27 Member State and retiring in another EU-27 Member State or the UK would have their healthcare covered by their previous country of employment. However, Article 29 (4) doesn’t address UK pensioners who worked their entire lives in the UK and retired to Spain or another EU country, a significant group affected by Brexit’s implications for cross-border healthcare.
Thus, it’s unclear whether the general provisions of this part of the draft WA or the more specific provisions take precedence. Typically, specific legal provisions override general ones. However, given that these provisions don’t explicitly address the two primary groups of concern, the interpretations drawn here are based on implication, making the draft text’s intentions ambiguous.
If the UK aims to include UK pensioners who retired to an EU country after working their entire lives in the UK, amending or adding to the text is necessary. Replacing “becomes” and removing the cross-border element from Article 29 (4) could achieve this:
“If, following the grant of a benefit based on periods of insurance, employment, self-employment or residence in accordance with Article 28(3) of this Agreement, the United Kingdom or a Union Member State is competent for the healthcare cover of a Union citizen or a United Kingdom national, that Union citizen or United Kingdom national shall be entitled to healthcare cover as set out in Articles 24 to 30 of Regulation (EC) No 883/2004 and the corresponding reimbursement procedures shall apply between the United Kingdom and the Member State.”
To ensure the EHIC scheme’s continuation beyond the transition period, a new provision in the WA based on Regulation 883/2004, Article 19 (the basis for the EHIC system) might be necessary. While Article 29 (1) can be interpreted as implying EHIC’s continuation, explicit clarification is preferable. Adding Article 29 (5) could address this:
“A person referred to in Article 28 of this Agreement, and the members of his/her family staying in a Union Member State or the United Kingdom shall be entitled to the benefits in kind which become necessary on medical grounds during their stay, taking into account the nature of the benefits and the expected length of the stay. These benefits shall be provided on behalf of the competent institution by the institution of the place of stay, in accordance with the legislation it applies, as though the persons concerned were insured under the said legislation.”
Continuing reciprocal arrangements for planned healthcare alongside EHIC is logical. Under Regulation 883/2004, planned healthcare requires authorization from the paying Member State. The UK, like all Member States, has always controlled this aspect of reciprocal healthcare within EU law. Therefore, amending Article 29 (3) to remove “before the end of the transitional period” is also necessary.
Time Frame in the Commission Text:
Most WA provisions have a strict time limit, ceasing at the end of the transition/implementation period. However, the social security coordination provisions proposed by the European Commission differ.
This Title appears to lack specific temporal limitations. Article 29 (2) mentions aggregating contributions and “rights flowing from such periods” both before and after the transition period. Consequently, this Title seems to perpetuate the coordination of social security systems between the UK and the EU for individuals within its scope, potentially for their lifetimes, as explicitly stated in Article 35.
This represents a significant duration, considering the personal scope encompasses not only those falling under Regulation 883/2004 when the WA takes effect but also their survivors (widows and widowers) and families. The last individual to benefit from this part of the WA would be the longest-living person within its scope, potentially someone just entering the workforce or a baby born to someone covered by this part of the WA when it comes into force.
Administrative and Dispute Settlement Arrangements in the Commission Text:
Generally, the proposed WA states that the UK will cease participation in EU administrative bodies, committees, or expert groups from the start of the transition/implementation period, “unless otherwise provided in this Agreement” (Article 6). However, an explicit exception exists for social security coordination (Article 30).
Similarly, while UK access to EU databases, systems, and networks “established on the basis of Union law” (including those supporting social security coordination) will generally cease at the transition period’s end, the proposed WA makes an exception for these systems (Article 30). Article 67 mandates that UK processing of personal data, both during and after the transition/implementation, must comply with EU law, including data processing under social security coordination.
The proposal suggests continued administrative cooperation on social security coordination between the EU and the UK, with the UK maintaining its share of costs for the electronic information exchange system (Article 30 (2)). However, the UK would assume an “observer” role in the Administrative Commission rather than full membership (Article 30 (1)).
Concerning dispute settlement, considering the frequent litigation surrounding EU social security coordination, the proposal suggests that the CJEU will retain jurisdiction throughout the transition/implementation period, including hearing preliminary references on EU law interpretation (Article 82). CJEU decisions during this period “shall have binding force in their entirely on and in the UK” (Article 85). The CJEU would have jurisdiction over the WA in general during this period (Article 126). Afterward, its jurisdiction over citizens’ rights issues in the UK (including social security) would be limited to eight years post-transition/implementation (Article 151). Its jurisdiction over the WA concerning UK citizens in the EU-27 would continue indefinitely. The CJEU would also retain indefinite jurisdiction over disputes regarding WA interpretation (Article 162), should political resolutions fail. If this interpretation is accurate, and this part of the WA’s temporal reach extends far beyond the transition, the CJEU would oversee this aspect of the EU-UK relationship well into the future. Additionally, the independent authority tasked with enforcing the WA concerning EU citizens in the UK would retain indefinite powers (Article 152).
Summary and Key Implications:
Two key concerns regarding Brexit and cross-border healthcare are:
The future of UK pensioners residing in or planning to retire in other EU countries.
The EHIC for emergency care when visiting other EU countries and vice versa.
The proposed WA text doesn’t directly address either issue. Some provisions, by implication, might be interpreted as guaranteeing existing EU law rights indefinitely—for the lifetime of anyone holding such rights at the transition period’s end. However, other provisions could suggest otherwise.
Regardless, the proposal suggests continuing cooperation and CJEU oversight on social security coordination between the EU and the UK (with the UK as an observer) well into the future, extending far beyond the transition period.
Whether this lack of “taking back control” is a worthwhile trade-off for the UK depends on various factors. The Department of Health and Social Care should play a central role in making this determination, subject to unquestionable parliamentary scrutiny. The House of Lords EU Home Affairs Sub-Committee will soon release its report on its inquiry into Brexit and reciprocal healthcare. The House of Commons EU Scrutiny Committee has already suggested incorporating Regulation 883/2004 (with appropriate amendments) into the WA, warning that a ’no-deal’ scenario could have dire consequences, particularly for vulnerable individuals. The House of Commons Health Committee echoed this concern, concluding:
“Far from being a drain on the public purse, the provision of care to UK insured persons in the 27 other member states represents excellent value to the British taxpayer. Moreover citizens across the EU can readily access vitally important, high-quality healthcare without encountering financial or bureaucratic barriers. Just as this allows someone from the EU to work in the UK, it enables a British pensioner to retire to France, Spain or Italy.
It is in the interest of many hundreds of thousands of British people living across the EU to maintain simple and comprehensive reciprocal healthcare arrangements. The Government’s negotiating objective should be preservation of the existing system of reciprocal healthcare so that EU nationals in the UK and people insured by the UK in other EU countries can maintain their access to healthcare.”
Barnard & Peers: chapter 21, chapter 27
Photo credit: Daily Mirror