Rindal and Elchinov: An (Impending) Revolution in EU Law on Patient Mobility?

Abstract

This paper critically analyses EU law on patient mobility, which has developed in the last decade. It covers the European Court of Justice case law applying internal market rules to social security coverage of foreign health treatment, its relationship with the EU rules on the co-ordination of social security systems, and the recent attempts at codifying the case law. The most recent EFTA Court judgment in the Rindal case, and its potential effects on EU law if the Court of Justice adopts the same reasoning in the pending Elchinov case, are investigated. The aim of this paper is to demonstrate the implications of EU law on patient mobility on national social security systems, namely their autonomy to define the scope of their coverage of health care treatment, and the consequences, within the framework of EU law, of applying certain legal techniques to define their social packages. Special emphasis is put on the new EU Member States and Croatia. It is argued that these states are in a particularly delicate position in relation to EU law in terms of maintaining the financial stability and the social (in terms of solidarity) character of their social security systems. The paper proposes certain solutions to accomplish a twofold objective: improving legal certainty at the European level (thus facilitating the free movement of patients), while, at the same time, respecting the Member States’ freedom to organise their social systems, in order to protect the solidarity on which those systems are based.