The Directive on cross-border healthcare or the art of codifying complex case law

Abstract

The main objective of this article is to study the recent Directive on the application of patients' right in cross-border healthcare by putting it into perspective with the case law that initiated it, together with the trade-offs that had to be taken into account. The drafters of the Directive have dealt with a number of trade-offs among the requirements of the respect for the freedom to receive care (as part of the freedom to provide services), the recognition of rights for the patients, the respect for the historical competence of Member States and the diversity of different healthcare models, and the protection of national financial balances. As a result of theses trade-offs, the Directive goes beyond a mere codification of the Kohll and Geraets-Smits case law. It displays an original combination of the codifying solutions derived from the free provision of services, the facilitation of the exercise of patient mobility by highlighting information in relation to such mobility, and a notable focus on several cooperating tools between States in connection with Article 168 TFEU. The article then raises some questions about the efficiency of this combination and its contribution to the realization of a genuine European Health policy.